good morning your honor is my name is peter o'neill and i'm one of the attorneys for the harlem meal family and i was also one of the trial attorneys in this case it involved the on road rollover of the ford explorer and the appeal addresses evidence that were presented at trial and just s issue here is the requirement for substantial still external r t where a party seeks to admit evidence of other incidents including statistical evidence and in this trial ford presented statistical evidence that described a huge number of very dissimilar are incidents much show substantial similarity in terms of the facts of the problem and also in terms of the circumstances and the circumstance of this crash was an untruth on road rule caused by tire friction explore didn't go off road it didn't dig into the earth it didn't hit a curb or slide off the hill mrs harm you know steered to avoid some deer and friction of her tires caused the vehicle to roll over because the fourth floor has a high center of gravity and guardrail but playing a stability expert and actually forward to agree that a passenger vehicle that is properly designed if it goes sideways on pavement should slide out this was ford's document that was sent to the federal government in  seventy three and it said the passenger cars must be forgiving of all manner of unskilled driver situations and in the end it says ford passenger cars are designed to for good or in the extreme to slide out rather than roll over on flat level close case even a small amount of wrongly admitted evidence can shift the balance and here there was much more than that most of the came at the close of ford's case and it tipped the balance against the harm you know i don't recall there was argued in the closing argument most of the closing argument with me as i recall the failure but but i think that the failure to show it was a huge part of the close of the case and it was the last two experts actually who used these dissimilar incidents  what i do believe is that none of this was relevant but none of this i think that i think the other incident comparatives i think that other incidents could be relevant if you follow the rules of substantial similarity says we've got to make our pickups and our trucks like explore perform like our passenger cars but i don't think that we never tried to compare the ford explorer to any other vehicle in its performance except the bronco two and  one of the one of the problem with  of their case no as part of our case but using forged documents only cross examining them about forged documents and about the design of the explorer and what they were looking at at the time that they were designing explore and some of those documents  course documents talk about mention fars to or mention these sorts of these sorts of other vehicles that i showed you here but i did not and we never did compare it to any other vehicle in our case in chief commercial vehicles they really had a different standard expected commercial drivers by the time this vehicle was being designed for the beginning to sort out that the sanctions that's why safety design guidelines said we must you know build these things to to act more like families of the passenger vehicle so we certainly didn't need it in all different sites vehicles and dividing them up in her own distinct ways we simply tried to stress vehicle one of the reasons why i think this can be so so devastating to us i'd like to use an example and magine we all know that cigarettes kill hundreds of thousands of people a year through cancer emphysema heart disease and madge and somebody makes that cigarette  causes it to roll over when other vehicles will not roll over for instance that hasn't the defendants as a class are immune from the requirement to prove substantial similarity and we think that would obviously be unfair if it were somehow true but it's can roll over because of steering along during or just during a loan on smooth dry pavement and that's that's what happened in this case and so many other cases this vehicle didn't leave the road any vehicle can roll over it once it does leave the road and that's a whole different ball of was the rollover stability i mean that's that's the thing is that true for the seatbelt as well for the child in the back seat yes i think that would be a secondary in other words once you're in a crash you've got to rely on the safety features of the vehicle whether it's the roof or th court my name is a democrat of i'm here for ford motor company just buys a quote if i could while it's fresh in our minds because you asked the question let's read watch mr anderson actually said question let me get it clear is that your testimony to this jury that if we human beings with any steering at all at any speed at all tests reasonably safe and defines in such part of the day that it's not reasonably safe as designed if the likelihood that the product would cause the claimants harm or similar harms outweigh the burden on them for a factor of design a product the likelihood and watching supreme court in the case referred by this court to it so that you know you can take a look at what other products do it was a pesticide  case in terms of whether there's an alternative design where the product is being challenged is or is not reasonably say this testimony goes directly to that how likely is it that something bad is going to happen when you're driving pack that is that is what you know the expression the trial judge in the most and lemony and you know if you take it out logically it rolls over ninety five percent of the time then it's reasonably safe first of all i don't think it's i don't think there's any jury in the state of is that statistically we know that one of the safest ways of travel from place to place is the airlines but we also know that airplanes crash and you know i don't want to be verified by make that judgment based on the same type of analysis that says to me ok an airplane is safer than a car an airplane is safer then ups an airplane is safer than a train our statistics show us accidents i think are which which really helps mr o'neill because if you want to start carving out of that accidents which occurred because of some something other than the circumstances which caused this accident the number goes down it doesn't go up the number goes down but the comparative number may go up it may not know it couldn't possibly because you're taking out of the universe she's taking here's the total number all over here's the number of times just hard driven on the road and here's the number of times here's the there's the quantified rest but when we talk about a comparison you have a in the they may look like they each well over twenty percent of the can but if you meaningless i still think that completely all the comparison is not perhaps as precise as you'd want to be but i think a person still is meaningful under the terms of the statute the second the answer to the question is that the substantial similarity test is trying to prove something else or they may be trying to prove there's no the fact they're also trying to prove that the car is reasonably safe the defense is not going to put on evidence of actually that's accepting very limited circumstances and anderson's testimony the testimony was if this car rolls over it's the fact that was the theory of the case it's a car rolls over it's defective and this evidence shows what's reasonable safe in terms of rollovers i think it's also pertinent to let's not lose sight of the fact that there was in this case an allegation a claim of a post sale duty to war which under the statute points you to a reasonably prudent manufacturer should have learned about a danger connected with the product after it was manufactured and given a warning this is exactly the type of evidence for  notice or warning that's correct but this is the type of evidence that tells you you ought to start taking a look at it and this was the claim that was in front of this jury what would a reasonably prudent manufacturer do and a recently prudent manufacturer case a look and she's that the numbers show that the car is not rolling over anything out of the ordinary and as a matter of fact with other things that fall within the the safety of the explorer to make it better than the driver or to make the bronco better than it was at some time in the past told them the things that they needed to look for the same vehicle in terms of the theory of their case and then when they were shown a consumer reports article which said which compared rollover rates for the bronco two to those for the chevy blazer the g m c jimmy you page it's forwards so i guess it's the supplemental excerpts of record twenty seven and i say that mr anderson he will tell you that a properly designed vehicle especially for a family should not roll over on smooth dry pavement where you compare overall well over very sort of the consumer reports was produced to us by ford and it came with many documents their own documents talking about this visit to consumer reports and you know what was really talking about was putting the consumer saying it should be limited it was actually at i think it was talking about rollover fatality rates and and ford's own documents also it was corroborating or vice versa for his own documents problem with this we talk about roll over race so we talk about the car being in the middle of the pack and the primary problem here everything under the sun and every time every sort of crash under the sun certainly consumer reports didn't go that far and this case shouldn't have gone that far when you make the pack so big and you put the explorer in the middle of it it becomes meaningless  i didn't review my argument to the jury at the end in preparation for this and so i don't want to say yes with this vehicle we're calling it the bronco two it was called in their documents prior to that the one nine hundred ninety and a half bronco two after that article it became the ford explorer there were memos relating to that visit to consumer report it was a historical document about the frankly to thank you your honor and with that i think i'm out of time if you don't have any further questions and i thank you