accord my name is tim cronin appearing on behalf of the plaintiff appellant in this case as the court is no doubt aware this is a product liability case of the l p l a involving the explosive separation of a mole type piece wheel resulting in a brain injury fractured face and shoulder injury to the point i like to focus my time on two issues of appeals if it pleases the court understanding one of the issues and in our peel is a jail fee for against the manifest with the evidence i don't think it's a use a good use of the court's time for me to recite six days of testimony on that issue so i'll rest on my briefing on the record the first issue i'd like to focus on is that several elements of plaintiff's claim under the l p l a should not have been submitted to the jury for consideration as they had been admitted by the defendant's corporate representative and should not have been reasonably disputed were not reasonably disputed specifically that there was an alternative product design capable of preventing plaintiffs injuries also the plaintiffs damages arose from a reasonably anticipated use and the plaintiff suffered actual damages from a characteristic of the product the second issue is that we believe it was error to admit a highly prejudicial drug screen by mr a bear from long after he sustained his injuries from this incident for which there was no proper foundation and no relevance for any issues for the jury to decide so on submitting elements of a plaintiff's claim to the jury for which there is no reasonable dispute if i think everybody would accept that if the plaintiff makes an admission that's detrimental to their case and can no longer reasonably dispute that they can't prove an element of their case the point of case should be thrown out on summary judgment or a directed verdict should be granted we're simply saying the same should apply from the other perspective if the defendant by their one witness that speaks on behalf of them admits elements of the case that element should no longer go to the jury to decide it is a question of fact because it is not a question of fact under the l p l a one of the elements plaintiff must prove is that an alternative design for for a design claim that an alternative design existed for the product that was capable of preventing point about this reasonably anticipated use piece of that well i think reasonably into supported uses a different element than alternative design but that is another one of our arguments that that is a different element that shouldn't have gone to the jury and run on that question there was one eye witness other than the plaintiffs who actually had the thing blow up in his face that saw what happened his name is also again if there's some evidence that goes to the jury even then you know ten witnesses say the light was red but one says it's green it goes to the jury even if the guy that says it was green is sweating and shifty i still go to the jury i agree judge i don't think there was credible evidence to say the locker room was in the end because even the all of the eyewitnesses who were there anybody who even if they didn't see it if they heard it said they heard a boom like a cannon went off and their corporate reps said if the locking ring isn't in that sound would not have happened but assuming there was evidence to say that they could defend saying it the locking ring wasn't in their corporate rep still it made it that was in a reasonably anticipated use and it's an objective question of whether the manufacturer of that manufacture should reasonably anticipate this kind of use i don't know i think there can be a difference and luckily the corporate rep in this case admitted both things verbatim and he admitted it was foreseeable and reasonably anticipated by titan that able to piece we all could be improperly assembled including by not just have ok that's what i'm saying i think i cited to that specific testimony several times in my brief it is from mr poole's testimony both when i put him on the stand in the plaintiff's case and then again when i crossed him in the defendant's case and i said was it foreseeable that this thing could be aired up with the locking ring not fully seated and then i said by foreseeable i'm asking you was it reasonably anticipated by titan that this could happen and it would explosive we separate and he said yes and then i ask the same question for improper assembly without the locking ring was that foreseeable yes and by foreseeable i'm asking you was it reasonably intice a painted by titan that's the ultimate question the defendant admitted they knew it could happen i don't know what other evidence i think it's record document to await pages one eighty eight and one eighty nine thank you thank you scott not only did ti admit they could or should have forseen this use but that they did in fact foresee it and reasonably anticipate it regardless of whether the lock ring was off or not properly seated they admitted under either circumstance it can explosive we separate and judged they had to admit that because they know it happened hundreds and hundreds of times this is not some novel product liability case there have been dozens and dozens of these cases around the country there were government investigations into exactly this where there's four or five hundred documented incidents of explosive separations blowing people's limbs off and their heads off in minutes ago department transportation government investigations all of that was prevented presented to the jury titan knew all of that before they made this wheel in one nine hundred eighty eight it's the reason that the wheel industry stopped making these wheels for highway use around the age around the eighty's but the department of transportation doesn't have jurisdiction over agricultural use so they kept making them for agricultural two as to be alternative design there is no question that a single piece wheel existed firestone was the predecessor to defendant titan with respect to this wheel firestone sold its wheel division to titan it's the same design firestone issued a patent in one thousand in the one nine hundred fifty s stating that single piece wheels would quote eliminate all of the hazards associated with more type piece wheels titan corporate reps specifically admitted they had a single piece wheel that would have accommodated this application back in eighty six or eighty seven before the subject we always which is before the subject we always manufactured that a single piece wheel would eliminate the likelihood of an explosive because it's a single piece tighten admitted if it had decided to use a single piece wheel instead of a mole type that subject single piece we hope would not have exposed separated and the question tighten argues extensively in its brief and  trial that there can be dangers with single piece wheels so they're not safer than more type piece wheels because you can still over inflate the tires well that's not what happened here that's not a cost point it's injuries or  yes everything you tell me this morning the jury heard that right i mean about this everything i'm telling you are things the jury heard i agree judge so there's no complaint that there was something that they should have heard in terms of what you tell me right now that they didn't get  hear no judge hearing all that they will begin i agree judge i'm a little confused about how they did it i know jury deliberations are sacrosanct i can't know how they reached their decision but i'm saying what admissions are made by a defendant then the jury should not be asked to decide a question of fact when it's been established that the defendant has admitted they can't dispute them anymore and they should only decide the remaining disputed issues to alleviate the potential for some kind of error in deciding fact wrong that's been producing there was an objection to a jury charge or jury instruction being given along those lines and the judge overruled let object i made a motion for a directed verdict on the specific elements that i'm saying should not have been submitted to the jury and i think during the jury instruction conference i preserve that objection that though should not have been submitted to the jury about very specific instructions you made objection that it could lead to to the verdict or after i believe i did i know i made a motion for directed verdict on it and argued to the court and preserve that i believe the jury instruction conference these elements just should not have been on the verdict let me ask you back to the issue of multi verse a single i understand multi might cause at this accident but single m cause something else why wouldn't that be part of the analysis the fact that single one of cars of this exact accident doesn't make single the better design if it could cause some other accident why i think the evidence showed your honor that a single  really cause other types of accidents other than over inflating the tire which can also happen with a multitudes wheel but when we're direct response the problem is you know the problem as i see it is that there is some evidence of the fact that singles not necessarily a perfect alternative or a reasonable alternative in the fact that there is a lot more evidence that it is to me doesn't answer the question really that we're judged grades of siding with his questioning which is overwhelming here are the specific elements we should shouldn't have had the opportunity to lose on them and to directly answer the question about whether there are things can happen with single piece wheels the language for alternative design under the lp away is not whether some other danger can happen it is whether the alternative design was capable of preventing plaintiffs damage and plaintiffs would not have sustained this injury because an explosive separation would not have happened with a single piece wheel so saying other things can happen with single piece wheels is legally irrelevant the question is whether point whether it would have was capable of preventing plaintiff's damages their corporate rep admitted an explosive separation would not and cannot happen with a single piece wheel there was no beating issue there was no overinflation issue there was no damage to ram issue which is i think the things they're saying that can also happen with a single piece but that's not what happened there wasn't a beating problem there wasn't  problem there wasn't damage to the rim and our expert explained yeah there can be failures in a single piece wheels because of a beating problem that was resolved by the late eighty's when this one was made that isn't actually an issue anymore i think the jury could have been asked the risk utility test for unreasonably dangerous and so that's what i'm asking for that the prejudicial evidence of the drug screen which i haven't talked about yet but which is briefed to be excluded and for these elements either one or all three of them that i think were conclusively established and admitted not to go back down and those elements not be submitted to the jury and we can just submit on the risk utility test which is likelihood that the product design would cause point of damage and the gravity of that damage outweighed the burden on the manufacture of adopting such alternative design and the adverse effect if any on the utility of the product now they have the single piece we all sitting on the shelves so there's no burden on it but i'm accepting the risk utility test is incredibly factually intensive thing for a jury to decide so i think the most appropriate thing to do would be to take away these issues the jury shouldn't have been deciding and just go back  and understanding you know all of the evidence that came in on on the dangers of this product and what they knew it's very  screen came in was especially concerning to us we felt it put a mountain in front of us that we couldn't get over that the jury was making a moral judgment of our own our clients about whether they were worthy of getting a judgment instead of focusing on the right evidence i didn't get a chance to talk to any of the jersey obviously i can't probe improperly probe the jurors minds but setting aside that it's prejudicial there was no foundation for now that this is not something that the fifth circuit doesn't have a toxicologist to say what this drug screen means there were admissions by the doctor who did it who actually never even treated the plaintiff in this case he sought treatment from him the drug screen came back he didn't treat the plaintiff the fact that it's in a treating doctor's records doesn't mean it's relevant to an issue the jury is to decide no toxicologist testified that this couldn't have been a false positive the doctor admitted it could sudafed like coming foods can result and showing a positive for meth but more importantly it wasn't relevant to any of the damages issues at all that the jury was deciding it wasn't relevant to whether he was damaged or the extent to which he was damaged there was zero medical causation evidence that if he had done an illegal substance that more likely not within a reasonable degree of medical certainty was causing his symptoms nobody said methot more likely than not were at any point could be causing the symptoms judge so we don't think it should have come in it was irrelevant prejudicial no foundation a couple of a couple of issues on the reasonably anticipated foreseeability and reasonably anticipated use your honor i believe that you're absolutely correct they're not the same thing but this court has been clear that just because there's a first steel ball use or misuse of a certain product does not mean that it is inherently in and of itself unreasonably dangerous she covers the question and answer session with was it for seeable was it reasonably anticipated and what she hold was plaintiff's counsel plainly defined reasonably anticipated as f but this is not an appropriate standard it might be sparse seeable to a manufacturer that someone would use its product in a particular way but that does not necessitate a finding that the use was reasonably can they see that that could happen yes does it mean that it goes towards the issue of reasonably anticipated deeds when we send out there was just a moment that there was a catalog that went along with this these cars are not sitting on certain sizes that once you get to these larger sizes you cannot use a single piece of lamb because you cannot be in the rubble enough to get it over and they call it button they need to be able to deal with a flat tar in the field or deal with it on base and with a multi part ram they can do that with minimal tools they can do that boat when you look at the at the warnings and the recommendations that are out there you're told not to stand in front of it you're told to put it in a cage you are told to use a clip on chalk so that you can stand away i bear suffered here i think where the disconnect is coming in and the argument your honor is anything that is under pressure has a chance of blowing up whether it  so when they're not handled properly trained persons there is the same risk of death or great bodily injury due to the vast amount releasing air quickly or explod manufactures approximately thirty thousand of multipart rams every year do the math the chance for the injury over that period of time with four known to  i just will never know that dr where did did i hear that a trained professional should service either one of these tars that's why the warnings that are put out even by osha are the same no matter which we'll you know if you're dealing with the mornings remain the same two planets argument goes a little bit too far into the area of well this accident happened so this product must have been unreasonably dangerous and i'm not don't think that that's the way this analysis works that could be put on so that mr a bear could step out of the wheels trajectory his boss said i don't allow that because people forget about it and in the putting too much air in the tar and it causes an accident so i think in the long in the short of it a lot of this was really a worker's compensation claim issue lack of training and we had all this evidence that they go to the jury on the lack of training the lack of wheels can fail and could cause injury the cause of the accident is not the standard the safe alternative it's just whether the alternative design often hear reinvent the wheel well here we really have to reinvent the wheel so that perhaps the tar doesn't require our air because every tar mitigation of damages to compliance with treatment it went towards a lot of the treatment that was going on and whether things were lingering where they shouldn't it went to a lot of those things it was brought up in opening statement plans counsel perhaps as a tactic to try to deflate what it was and also went to impeachment incredibility there were there were bit whether you comply with the doctor's instructions with you taking medications accordingly whether you overuse or under his medications and that causes certain things those things are relevant to the extent of a person's disability ma'am not believe that your honor judge grace was correct there were a lot of issues the jury heard practically everything that they could have heard both sides and it was a matter of their choice and the first two questions on the jury verdict form or was it unreasonably dangerous in design and they said no was it unreasonabl ok i'm still not hearing articulate reason why admitting a single methamphetamine positive drug screen from ten or eleven months after the incident that happened with a doctor who didn't alternately treat the plaintiff is relevant to anything the jury had to decide the fact is he did a drug screen in the current look away environment we live in doctor should do them and they should be very careful about prescribing opioids and they don't get in trouble meth he simply said if there's a positive i don't treat that has nothing to do with the extent of the plaintiff's damages whatsoever and it had no medical causative relationship to any of his symptoms from those injuries there was no relevance other than to paint the plaintiffs in a negative light and when you look at what ultimately didn't happen but they had they had another expert who talked about trying to say the point of did eight or nine other drugs in their history those on that up being excluded but the point is i think it sheds light on why they wanted to do it they know what jury is less likely to give money to a person that they think doesn't illegal drugs and i can understand that but it had no relevance to anything and if there were an missions it could be a false positive and it's incredibly prejudicial and you need to toxicologist and doctor bozell even though he was not disclosed as doctors cannot read reports they get back they send in my blood sample to see if i have the flu they can't read the report and know you don't have a flow i mean and then the wants of one of going through all these tests no i'm not saying a doctor can't do that i'm just saying it had no relevance to the issues in this case i'm stuck to bozos entitle to make the decision he toxicologist i can't draw toxicological conclusions about it and yet he was able to say ok because it was sent back in for conclusory a second test the same sample that means i don't think it was a false positive that's a toxicology opinion it's not one he gave in his depo it was brand new it was objected to it was never disclosed and he could did not have the foundation to give that opinion under seven o two with regards to titan saying we only know fo incidence document two away page one seventy five this is again titan's corporate crap mr cool lines twelve to fifteen quote in any event mr cool titan has been aware for decades that hundreds of people have been killed from the explosive separation of mall type peace wheels true answer yes they can't stand here and say they know if or when their corporate rep admitted they've been aware for decades of hundreds there's government investigations of four to five foreseeable it's reasonably page one eighty nine one through ten it's reasonably into subpoenaed by titan that it can happen correct answer yes they need to define reasonably anticipated as a legal term or was it just that other word for perceive i mean the fact that a lay person says something is a proximate cause doesn't necessarily mean they're using the legal definition or proximate cause and so how do we know that the judges determination that this was just the two are synonymous and respondents mine is incorrect well i can only assume that the witness listens to the exact question that i asked and answers the exact question that i asked and it's not a legal conclusion i mean we have to assume it therefore over and over again as a lawyer i mean he didn't come back and say i didn't understand your question correctly when the other side examined him i mean i a asked reason we anticipated different questions and it's not a legal question it's a factual question for the jury to decide and he's there on behalf of the party answering it making binding admissions on behalf of the party and he said it was reasonably anticipated we've known for decades this can happen under these circumstances and so bronner's i would ask the case be sent back down without the mets screen coming into evidence because it's relevant without foundation and we retry it just on the element of the risk utility analysis ok thank you this case is under submission we will now take a five minute break to reconstitute the pa