writers thank you may please the court for the past hundred or so years texas courts have recognized that the duty to prove that an employer is duty by its employees with necessary instrumentalities the seat performance of their job is absolute continuous and non delegate all or some combination of those three but for the second time in the past four years the district court has granted kroger's motion for summary judgment after only use the concluding that the scope of the is somehow limited to the facts of the case i will say that i was a state trial judge and had a lot of slip and fall cases and i think this may be even longer running than some of the marionette epic proportions right now it's like point one trip to us one trip to the texas supreme court wouldn't you just button this down in every way i mean even if you felt like you didn't have to attach the experts weren't why i've seen a lot of lawyers go was not necessary to do this but even if it were was trying to do in this case was essentially a backdoor way of challenging our expert without filing a double instead what it would do is speak a blanket statement of you have no evidence which is in a lot of the rules then have me come up with my expert report established the absence of a fact issue here they received an expert look i understand the confusion because you're saying the federal courts don't really have a one sixty six a qual one sixty six am i under texas law but the federal courts do have the proposition that if you specifically point out the absence of evidence that the other side having the burden a trial lacks and you simply point that out that there's no such evidence in the record that does work in federal court i'm sorry i know you don't want to agree to that but it does work as work does work if you point to evidence that negates that element now if you say the record has an absence of evidence supporting an element of my opponents claim that my opponent at trial would have to prove there just ain't any evidence of causation out there then you have to come in and create a material issue that we don't phrase it the way you want sixty six i ideas but it is kind of similar actually one sixty six the home was modeled after  and which they weren't able to identify a single person who could show that this person with that was affected by the as best as in every other cases ever interpreted this rule they say you have to point to something in the record they don't have to  there was evidence of causation produced let me ask you about that because you have carefully not said what i would assume which is if you know there isn't that in some the record and you file a motion that says there isn't there that is a violation i haven't i'm not do you haven't said that and i'm not really sure why because it seems to me here is krueger saying there's no evidence of causation when in fact we know there is because they have the ex report that you didn't attach and now they're trying to kind of win because you didn't understand federal law so actually this people have become very good friends not believing not only this case and others i think that the by interpretation of the summary judgment standard is correct i think it's consistent with some attacks with this court's opinion in the ash vs coralie case i think it's firm it's well established everywhere in the country you have to point to something you complete can't make a conclusion restatement weapons and because i believe the law is on my side i was going to accuse my counsel of acting in bad faith i disagree with them but i don't think they were trying to lie to the court i think they were employing a strategic tactic to try and get me to prop up my expert report without having to do with remember the record reflects they were scared to depose my expert my expert's report even says in there i reserve the right to supplement this report as additional facts become known to me this this this motion excuse me the motion for summary judgment i believe is still pending  the premature to say that because it's been a scheduling order but the long story short of kroger was well aware that there was an expert on causation but rather than attack his opinions they tried to shift the burden to me but it's clear under the federal rules of the burden falls squarely on the movement when it comes to trying to establish that there are no let's say you're wrong on that then in fact it is enough to specifically say my opponent who's burden it isn't trying to prove this doesn't have any evidence in the record of conservation let's assume that that's the law that you don't think so but i have dealt with who are these and so anyway that's why i will soon then argue and then what your argument how do you win my argument would be that that statement would be contradictory every other court that's ever and i believe that rule for there is fifty nine or fifty four whichever fifty four applies to non on final judgments which this order was a motion for reconsideration of the court should have allowed me to protest if the court allowed you attach then would you prevail yes i believe i believe if you had to let's say let's call it a one sixty six burden because we understand that phraseology if you have that burden you think you meant it with the expert reporting the matter with the expert report and also with kroger's own evidence and  me take back the statement really that it couldn't be one kroger's own evidence here essentially shows that they created an oil spill in their bathroom ok or did somebody come in special to clean it up gave them some tools but one of the tools that they did not provide him with was the very  substance that they recommended being used by a guy who's been a janitor for seventeen years said that he you know he thought it might have been helpful the court and i realize the district court called that speculative but it's at the end of the day we have a crowbar requiring a product be used a janitor saying that he thinks that's where i was going originally your honor is that the courts can only grant a summary judgment on grounds that are requested by the movement its first principle and we know that in order to obtain that relief you have to conclusively established the fact issue as you're saying before well kroeger move for summary judgment not on no breach grounds program for summary judgment on the grounds that there is no duty and it's a very important distinction because we have to be on notice of the legal basis for their motion so for example in section a of progress motion for summary judgment they say there is no duty because austin was aware of the danger now that the district court correctly rejected that argument has no support in texas law for that whatsoever but in section eight two they said the duty it's limited to providing a person a single way to do a task that's what they are doing that duty argument now the cases they cited don't support that at all but what the district court did is it took the language of the cases that kroger cited for its so our argument was there is that the idea that you have been only your only obligated to provide employee with one way to do a task safely simply does not exist no case supports that in fact one of the cases that kroger cites in terms of foreseeability argument final order rule fifty nine applies to judgments and rule fifty four in the language of the language of the pins that interpret it talks about how the court can allow relief under rule fifty four for any reason that justice or equity might require and that's important here because clearly the evidence under rule fifty nine for motion for new trial this isn't new evidence we all know that it exists ok this is simply a procedural tactic or a procedural issue as to whether the court would entertain another brief a month before trial for a case that's been pending for seven years and we specially submitted the justice and equity would allow the court to consider that report given the fact that everyone knows that it exists and it is obviously addresses the merits of the issue and rather than refuse to consider evidence the district court should have we respectfully submit consider the evidence that actually supports the case and deal with it on the merits as opposed to refusing to consider an expert that the plaintiffs not only paid for but that you know serv discovery time when there was no dispute about that whatsoever i think the important thing here is to focus on the fact of what in a firm and of the trial court's judgment and opinion if this court affirms the n duty language ok it means that every there is no duty holding in the no foreseeability as a matter of law and it means every subsequent non subscribers case that's filed in federal court will be reviewed by this court to no avail because when it comes to wasn't instrumentality on it in court that there's this instrumentality was not necessary as a matter of law so therefore we can throw the case out personal injury cases and the scope of someone's responsibility whether they were reasonable under the circumstances is not a legal issue the excuse me the existence of evidence is certainly an issue and in texas as you noted your honor there is a one sixty six a i there's no evidence here if you look at all of the cases that kroger cites they talk about there is no breach there was no negligence there was no cause it was no causation none of them say there is no duty but but to be quite honest the other issue here the argue argue the kroger raised that the district court granted summary judgment on even though it wasn't there's a lot of support it is the idea that it is unforeseeable as a matter of law that an employee will be injured when performing his could himself because that's his routine job and if you're going to suggest that somehow it only applies when you're doing something that's dangerous texas law doesn't allow for that unless the kiddie springs which is travel or a case the guy using a regular machine was injured when part of it hit him and he was allowed to recover the no duty and the unforeseeable as a matter of law simply has no support in texas law and to allow the government to allow the firm is based on those grounds we invite big drastic change in how non subscribers cases are handled in federal court your honour's thank you for allowing us to be here and may have pleased the court the district court have three grounds for granting summary judgment the first was that he was performing his routine job at the time as found by the texas supreme court and that as a matter of law you cannot recover if performing you explain to me how that makes a lick of sense i can ok there is a difference between  course and sco and routine job there are several cases out there where an employee is allowed to recover because he or she is performing something other than the customary work the thing that people want you're basically saying is if you're a non subscriber you get a huge benefit because i give you an example of of the dozens of worker's comp cases i handle back when they had workers cohen lawyers handle worker's comp cases one hundred years ago and now if somebody is getting a file out of a file cabinet as part of her job she reaches down as she pulls out her back it's hurt she would have a worker's comp case she would handle non subscribers case depending again on the negligence of the  employer so i'm trying to understand the notion that if you're performing if you're performing your routine work you suddenly are the non subscribers insulated from liability actually gives them a huge benefit over those who go ahead and pay the workers comp premiums and for him if you're injured in the course and scope of your employment you pretty much get yet the recompense of worker's comp and then the employer gets immunity right from a policy standpoint most non subscribers expression like croker and there's evidence in the record that kroger has its own benefit plan and actually paid one hundred percent of mr austin's medical so it's very likely you can still get ok it is supposed to be harder on the employer because the policy is to try to get people to do workers comp so your argument truly to me makes no sense i mean you can make it and that's and i may just have missed right or wrong from a policy standpoint it is the law in texas and keep in mind that when deciding issues in texas courts do consider lots of factors such as the risk t foreseeability likelihood of injury weighed against the social utility of the actor's conduct the magnitude of the burden and the consequences of placing that burden on the defendant so there is texas supreme court has presumably since it's already announced this law gone through the policy considerations and it has nonetheless decided not once but twice that when performing your customary work if if you're injured it's not for evidence that he customarily would have used the spill magic for this type of spill and his testimony to the testimony that cited by the plaintiff the question is what would you use what equipment would you use to clean up a wet spill he answers a wet spill if it depending on where the area is if it was cooking oil take spill magic's so the evidence is it depends on where the spill is whether it's on the sales floor warehouse they never had that to our motion for summary judgment where we specifically said in our motion there's no duty to provide more than one safe way and in our brief austin has presented no evidence that spill magic was necessary to the jobs they for formants we shifted the burden on to him and he does not claim in this court that kroger failed to meet its burden of production on the rule fifty six on the necessity issue it's limited to the causation issue so that burden shifted and he failed to present any evidence that spill magic was necessary there are lots of things opportunity under fifty four b fifty two percent the expert board that would have been an opportunity to just what you say he did it would have been except that if you look at his expert declaration which has a lot of opinions that were not in the expert report provided the krueger there's nothing about the necessity of spill magic it talks about what it does and then there's a conclusory statement at the end that it was a substantial factor in causing this but there's nowhere in that in the declaration or in the report does the experts say that it's a necessary instrumentality in order to safely perform the work nor does he go through the all subs factors which were adopted by the texas supreme court in el od including kroger's own manual that evidence actually is not before the court because it was never presented we don't we have a statement by mr keita in his brief that program requirements not supported in the in the end i guess in your i don't and the answer is i mean the problem is and i think people make this mistake because rule fifty six has changed it does not any longer require an a with an attachment it requires that the evidence be in the record and the record would include production of documents etc and then if you think there's something in the record that's false you have to say they wouldn't be able to put who are we talking about the discovery in the case yes i think you have to bring it to the judge but the point is that is it absent from the materials in the case i don't think so you're you're right your honor and the answer to that is that the texas supreme court held in fs transportation services which is at one fifty four southwest third eighty four on page ninety two a company's internal policies alone do not determine the governing standard of care oh no of course not but you're saying whether there's any evidence to support the concept that something's necessary and i'm saying it's evidentiary of that your own p provide this because we need it well a policy may also provide that you have to wear a uniform that does not make the uniform necessary to the safe performance of the job there could be lots of reasons bill magic is required it may be cheaper than buying replaceable dry mops it may do the job more quickly and then save on man hours it may do it better but that doesn't necessarily mean safer and that's where our evidence is lacking in this case the plaintiff has failed to using that is now he said here's the problem that i have and made and i'm just going to ask it straight up are you trying to win this case on a gotcha because you've got an opponent who bless his heart still is making in my opinion a completely wrong argument about federal procedure but obviously you sincerely believes it are you trying to win this case on a gotcha six years into appeals and supreme court later we're not ok i mean why not because if we consider the expert report let's say we consider the  declaration that how do you still win the expert report and the declaration are completely silent on necessity you don't think saying that the spill magically with that with the spill magically would've fallen is some evidence of necessity when you couple it with the the manual and all that i don't i don't the way the way the record reflects how this accident happened is mr alston would walk across the hill and  from the back of the field or there is no evidence that he wouldn't have done the same thing with bill magic water here but if he sprinkled the spill magic then it absorbs all of that then when he's walking across he's walking across a dry stuff as i understand it and then he i'm going to all the requirements for necessity under all subs is more than just showing that it would have prevented the fall that's only one of the factors that's the last of five or six factor he says he doesn't really know it might have helped a lot but he can't really say whether it would have been better so even even mr austin is unable to say pardon me what about his other than just that it would have prevented the fall in also if they talk about whether he specifically requested it that day there's no evidence he request it may have been sitting in the back and he just didn't ask for it just hadn't made it to the car you bought it was always on  a thing about he did he should i ask who were it not all of this been super proactive that's for sure something you waived by being in on subscriber the contributory negligence of the employee i would agree and these are not to be tory negligence arguments they're simply factors the court looks at for determining necessity and there are other ones including whether it was an industry standard or commonly used the expert report is completely silent on those issues whether a reasonably pr employer would have provided spill magic my guess is nobody's even heard a spill magic in this court room before it's not commonly used it was something kroger was using to go above and beyond that does not make it  matter of routine it doesn't matter whether anybody in this coded ever heard of it they certainly have that's true but it was not an industry custom the industry custom is using a mob that's just generally because i would tell you this most slip and falls are water based services i mean i have had literally dozens and dozens and dozens probably hundreds as a state trial judge for eight years and it was always some you know the ice melted or the grapes fell the squishy grapes or whatever they were water based it was not a bunch of oil from some mechanical thing so i don't know that relying on like what we know from the slip and falls we've handled  particularly helpful and that's why this is a different substance that's what made it hard to clean he still when you look at the all subs factors and he still has failed to prove those he put he did provide in his expert report some evidence that spill magic would have prevented the fall on that factor he did provide some evidence if this court were to consider the expert declaration not the report the report doesn't have i mean how about going off the report because it seems to me  his findings on record twenty six zero five he says he didn't they didn't train him and they knew or should have known that the equipment should be made available to these arguments you might be but we then would be talking about sort of quality quantity of our of evidence instead of lack of evidence he never says that the tools provided were inadequate we only have a duty to provide reasonable tools not the best tools reasonable tools in a broom and absorbent sauce and paper towels there's no evidence those were sufficient reasonable to safely perform this tas that there may be some new development on the market and that kroger has gone above and beyond to provide it doesn't establish a basis for liability should he have an opportunity to prove  watcher fish for this kind of oil is fine if it's the waters he should have proven that during his discovery during his expert report designation period he should have made those types of inquiries and opinions and conclusions but he still to do so why are you fighting the expert report being submitted if you don't think it wins the day for him the the expert report itself we we don't think wins the day the expert declaration which was only provided to us after all of the briefing on the summary judgment and did in connection with the server apply in fact it wasn't even attached until the mo asking the import of what he's asking is that the court reconsider the summary judgment in light of this evidence that's the same thing that this court saw in the ross case where a late designator late provide a report and it's purely discretionary if the court had agreed to consider it that's purely discretionary ever to see fifty four is a much less a smaller thumb on the scale it is just a bunch of them are discretionary the fifty nine is like this extraordinary new evidence some witness popped out from behind a tree after there was a final judgment and never heard of him and all that and he's saying can't meet that standard and the judge found it couldn't be that stan or i agree couldn't but the fifty four of like what's fair  that he make handmade because again i think he's just confused about federal procedure and i'm not sure that's a reason to lose a case it was a strategic call whether to introduce evidence or he made that beyond a reasonable doubt when it's a preponderance of the evidence maybe still loses but we don't know because the judge didn't apply the wrong to the right standard and wouldn't that be the kind of thing you remain well that would just open up a new loophole in summary judgment procedure where the judge concluded that what he was doing was crafty and sort of laying behind a log and all of that that would be a very valid reason to deny under even a fifty four standard i don't see that here personally i really just see a misunderstanding of the law but that's not up to me but the district court can evaluate that do we have a lawyer who's being crafty and dodgy and we or do we have a lawyer who's just confused and shouldn't lose his case over confusion and that's a fifty four decision but a and the argument against is that we felt to meet the burden of proof i think i don't need to argue on that i think the court is clear where the burden of production is and how it's m e but he also makes an argument that we made a new argument in our reply and i'd like to address that a second he said in the reply  argued for the very first time that taxes in summary judgment roll is actually fashioned after its federal counterpart and that we have long permitted in all fifty six to permit no evidence summary judgment that was simply responsive  question of whether pressed the issue of whether this product was necessary can be resolved by this court very brief very quickly if you look at the record on appeal of pages twenty three fifty and twenty three fifty one that's the table of contents to kroger's brief in support orders it never moved for summary judgment on the idea that randy did not have evidence to show that the product was necessary it never cited all subs versus war and it's brief the district court granted summary judgment on the lack of evidence of breach on its own it can't grant summary judgment on the ground not requested by the movement kroeger opted to make the argument that there is no duty as a matter of law to provide more than one safe way to address a problem and for that proposition they cited several cases which don't stand for that proposition but stand for the idea that you have to show breaching causation etc i have to be on notice of what i'm responding to they did not say mr keating here the six also specters you have no evidence of any of them if it did i would have responded to them but he didn't make that argument and it's not fair to me or my client to allow the court to grant a summary judgment and say you didn't come forward with evidence that you were never asked to come forward with it did move on causation and obviously i'm confused or a liberal i'm going to know that when you say bless his heart that's not usually a good thing so in any event if this court wants to make word necessary or not it's what could a reasonable jury in for he doesn't have to come forward and say to him saying it's necessary it would be just as conclusory as him saying that it was a substantial factor the fact is the evidence taken together could a reasonable juror conclude that the plaint f prevails and i think that if you take all of the evidence in the record including the expert report we plainly satisfy that stand but the fact that the expert does not say it is necessary is irrelevant to this course ultimate decision because that's not the ground on which  causation i think is his present from his report and should not have a problem should the court conclude that i'm not correct in my summary judgment practice and grants the overall the court's decision denying motion for reconsider the other thing i want to address here i can think things that my colleagues don't think that has certainly happened more than once and just this is the first i've heard of the argument you've made procedurally after almost nine years on the federal court but i'm sitting with two judges who  on this court so i'm hoping this is one of those cases judge but the other thing i'd like to think it's going to be on that point but hey you know i do my best the other thing i want to dress in the second is important we're talking about the duty and foreseeability analysis  correctly cited all of the things that texas courts talk about with respect to whether there's a duty the placement of the wrist the foreseeability the consequences of the conduct those are factors the texas supreme court considers when you're trying to decide in the first instance whether there is a duty that been resolved for one hundred years ok you look at those factors for example when you're trying to conclude whether someone had the obligation to protect someone from a third party criminal ok is there a duty in the circumstance well it's look at all these factors here and determine as a matter of law whether there was well there's no question that there is a duty to provide necessary instrumentalities that duty exists it's there it never goes away it doesn't just based on the circumstances of the case so the only thing that foreseeability can be relevant to not duty if you only be essentially would do if you foresee abilities be analyzed in the context of law it really takes every non subscribers personal injury case and turns it into an issue for the for the judges as opposed to for the jurors i see my time is almost up think the court is well aware that in the seven years  case has been going on it's now been presided over by one trial judge to fifteen appellate judges were asking for to be considered by the jurors twice this case has been dismissed a month before trial based on evidence that everyone knows exists and based on law that really hasn't changed we have t