had morning june hoffman a feller white burnett for the defendant appellant warren manufacturing as a court is aware of this case involved a fire that destroyed a personal residence and is a suburb ation action brought by the homeowners insurers against ward manufacturing that alleged that its gas piping product was defective failed and caused the fire if erie that the plaintiff asserted at trial is that the tubing was too thin and was a little energized by electrical energy caused by a lightning strike rather than the household electrical current such that it caused the fire at issue what's difficult these types of cases is that household current and brand circuitry can melt during a fire and actually perforate the tubing so there's always an issue about whether what came first that you know the the perforation in the tubing or the actual current that art from you know the source of the fire moving to the first issue ward was entitled to judgment as a matter of law on the strict liability claim due to the government rules defense  one was the negligent design the second was strict liability and as you know the third was feluda four to warrant but they were expressed specific individual findings on each of those theories of the case you've raised a number of objections to the strict liability finding and the failure to warn but even assuming you were right if you're wrong about the juries expressed findings are negligence isn't that the end of the matter but differently is there any reason why we even have to address strict liability and failure to warn if there was a sufficient you're really related to both so i understand i understand that but i'm just it's just seems to me the guts of this lawsuit has to do with your claim that the district court clearly abused discretion in allowing in the testimony of their expert if you're right about that that seems to me to be a big deal but if you're wrong about that and that evidence was properly before the jury and you had square findings are negligence it seems to me that's essentially the end of what we have to decide maybe i have misapprehended this but that's sort of how i saw the outline of there was an erroneous admission of dr eaters testimony because under daubert you need to demonstrate that there are sufficient facts or data upon which the principles of an expert are reasonably applied is really no factual trial dr eagar testified that as to the source of the ark he testified in his deposition that it must have occurred from the age back system because there was ink on the tubing at trial he changed his mind based upon a console with another expert at trial the evening before that he stated at trial that it must have been the chimney flue because that was that was closer now the jury heard all that right i mean your your cross examin one side and another side on the testimony but dr eagar is essential testimony was that the the perf the hole in that in the tubing was caused by something that had zinc in it and he testified affirmatively that in order for a gas to ignite from the tubing there has to be something close to where the gases expelling within six inches or twelve inches order to create a sufficient oxygen environment for the gas to ignite like an ordinary circumstance you can have gas escaping from a tube but it's not going to cause ignition it's going to sort of burn out and his testimony at trial was that you know he didn't look at any of the plans he didn't know where the age factor right but what he did say was as best i could tell reading his testimony he were lighter on among other things at least the following pieces of the data or evidence one was the size of the hole and he explained why the size of the hole was a big deal and given its size he said in substance these are my words not his but he said in substance that you could in the source being right now rather than something in the house from the size second he talked about the presence of three other physical in disha including why couldn't he draws that inference and that based upon those pieces of the other and he cited or those not the kinds of things that an expert in this field would normally rely on to opine those were certainly factors that he testified to go into the calculation as to whether a lightning strike was involved with the fire but what's significant is that he did not in terms of determining the size of the hole he never measured the hole and at his deposition he said i never did the hagan good equation which is an equation whereby after the fact you can measure the size of the hole and then determine how large of a lightning strike was at issue because only a certain there at trial which was to ward severe prejudice due to a change in a fundamental crucial liability causation issue in the case so as far as the size of the hole is concerned he although he certainly you know he's an m professor he's a metallurgist he's very well accomplished no one is questioning if i understand the heart of your argument is he did in fact measure he did offer an opinion about the size but he offered it too late in the game yes or and there was no reliability concerning his application of those principles to underlying facts in this particular case did you argue in district court that the reason he should be excluded as an expert was because he's come to this opinion too late in the game as opposed to the opinion is no good whenever he came to it the trial counsel i thought i heard you just say the la rather than the former that this is just not a reliable opinion because the foundation was insufficient and that's where the abuse of discretion arose as opposed to he came to late in the day to  opinion the primary position which was consistent with the pretrial d'albert motion was that there was an insufficient foundation for his opinion not that he came to it too late the game he there was reference to the fact that it was new opinion during the course of dr eger is testimony but the record is somewhat unclear as to whether there was an affirmative motion to strike out trial concerning the i didn't see that and that's why i raised the question was he not in any even cross examined about coming to this view late in the game yes he was cross examined and impeached on that so the jury had the opportunity to hear that on the round one he didn't offer that i e a deposition and iran to only for the first time a trial he did and that's pretty late in the day and that undermined his credibility yes sir but we also assert i think fairly on this record that the opinion still lacked of sufficient foundation reliable thank you thank you very much electricity on these clearly qualified to render these opinions and relied upon the same type of material there was a light upon in the atoms for slab court case which is court decided in two thousand and fourteen specifically the methodology that he used in terms of the tools that he put to use in formulating his opinions in the adam's case they used microscopic samples in this case dr eagar literally reviewed hundreds of x rays photographs microscopic images skinning electron microscope images and also e d s images which provide the atomic footprint of the stainless steel surface and i asked you a question i guess it's really about the second you know he's got he's got an opinion that the lightning strike caused the arc and that they are caused the fire about that the second piece of it there's this phenomenon that frankly i had not been aware of this flame lift off phenomenon and that as your opponent says or something got to be something kind of jamming the hole to cause the gas to be trapped or some such and he said i think that has the best explanation is that it must have been between some joists or something what's the basis for that it's based on common construction pressurized gas comes out of a tube it has to mix with air to be good because it's too rich and once it mixes with air that it becomes volatile to the point where can ignite dr eger did this by virtue of an experiment in both full as a demonstration of what lift off is well as what sustained ignition is and he's able to demonstrate that to the jurors through that through his experiment there was adequate quote cross examination on it following the vote here so the experiment i guess shows that in theory this flame lift off thing works but did it was there a blueprint of the house or photos of the house or something to suggest that like yeah and the joists really would have been in a position to trap it so to speak that's my word that the house was completely as  was ashes on the ground so it would be speculative for somebody to say where he particular joist was however that was the purpose of the void here was to establish that the the parameters of his experiment were similar or substantially similar to what typical construction would be in a home and that's because the c e o says he's typically attached to rafters it has to be secured to the wood framing members within the house we also know that  act as a barrier that we're allowed for that type of mixing so we know by the physical evidence the fact that there's actually zinc found in the stainless steel we know that there was something six to twelve inches away we know by the typical construction means jury those findings which were both reliable and based on a scientific means dr you're also used established principles of science to include the forty a heat transfer equation to determine the amount of time it would take for the multan surface to actually occur it's based on a scientific formula used by metallurgists based on his measurements of the scanning electron microscope images he's able to calculate the amount of time it would have taken for that violent transfer of molten steel in the steel to take place in this case he testified that it took one ten thousandth of a second for that to happen which also supports the fact that this was caused by lightning because household electricity could only operate at one one thousandth or ten thousand times less the the violence of the emission of the steam the steel as able to calculate that the the area of the hole being forty millimeter at his expert report that was turned over initially and his deposition did not reflect having made that calculus you know it did not reflect that however he had the measurement of forty millimeter squared which is the area of the hole in dividing that by three one is able to determine what are we to make of the fact that the essential opinion that he offers about that formulation is only arrived at essentially in court as opposed to being disgorged earlier and at a time when they could have done more with it well i don't think it's i don't think  middling i don't think that they squarely challenge his testimony on those grounds as opposed to that it was just a sensually unreliable it wasn't well grounded in the science of the field and therefore should be excluded from was contained in his report and that's the forty millimeter squared right but didn't apply the particular formula and say this yields or is are an important part of the foundation of my opinion in his report or in his deposition he only comes at it pretty late in the day he did the calculation in his head at trial and with the trial court have been within its discretion if it's said you're a day late and a dollar short and i'm not going to let your opine of least on the basis of that equation whether you have a sufficient independent foundation that's sufficiently reliable to opine is another question could the court have done that i know that didn't happen if they are just trying to get out how essential is formula was to the reliability to the foundation to portie answer if he properly if he in objection was different than the physical evidence which actually shows the hole and the actual formations of metal around it and the criteria that he used for metallurgical standpoint to determine that this was caused by lightning as opposed to help select a city so  quezon could be considered icing on the cake we know that from the physical evidence that it happened we know that it happened from electrical energy that's not disputed by words experts being able to quantify the amount of  energy is not so relevant to the actual happening or the physical evidence that demonstrates what actually is before the jury  on the other factor that is consistent with the evidence in and the methodology used by dr readers the fact that both of the defendants experts adopt dr readers methodology in rendering their opinions and specifically that's mr gibbs in skews a metallurgist agreed that he relied upon the testing performed by dr eagar in both the lighting laboratory as well as his own laboratory and the testing performed on the c f society in this case caused the hole that occurred in this case so it's entirely consistent with the evidence i think the the primary difference between the defendant's experts and the plaintiff's expert was that they could make the determination that this was caused by lightning in the simple fact that they didn't do any testing alighting laboratory they didn't do any independent testing outside of the work in this case and they didn't they didn't use the material that they had before them to make such conclusions ms telling source of the zinc should we be troubled by that i frankly have a hard time getting my head around that is is it is his opinion simply that it's something that would give rise to a zinc residue as opposed to copper wiring or that it something specific and hears it exactly you hit on the the the true meaning of if when you find zinc in the atomic footprint that shows you that it or to something metal if you found copper in there would be more supportive of the defense theory in the case that it or to copper wiring in this case the fact that there's no copper in the e d s skin were visible through any scientific means is supportive of the fact that it or to something metal and because we know that there was lightning in the area in the other metal items within the attic it's not so relevant whether it's a flue plate and a cheap piece of a t c duct work it's the fact that the galvanized surface of those metal surfaces contains zinc and that's that shows that are to something metal that was not copper in the specific source of it really isn't that relevant it's not and you know it's the v s e it's whatever it's something metal it's not something copper but these were all within close proximity of one never one other than they were found in the debris in a pile side by side with one another got it thank you counsel fail it had to be caused by a lightning strike there had to be a lightning strike of twenty kilo and the equation will demonstrate what amount of energy perforate perforated the c s s t so it was absolutely critical and prejudicial to ward to have dr eagar do the hagan equation on the stand and essentially right but did you say to the trial judge what you're saying to us now strike the testimony we didn't get one important supporting the opinion until right now trial did not offer it to us in the in the deposition and we're only getting it now and that's the reason judge to strike this expert trial counsel did not request that really a trial why isn't that fatal to your claim at least in so far as it  hears in him coming to this application late in the day well as it doesn't mean there is a sufficient foundation or that the opinion is reliable but i don't see how you can quarrel with the opinion having been offered when you didn't quarrel at the trial level and didn't give the district court a chance to address that issue i understand and appreciate that point what is important in my mind is that the plaintiff had the burden to demonstrate that the c s s t failed due to a lightning strike and that it was ultimately to sustain the lightning strike and what the evidence shows is that he did not measure the hole have affirmative reliable evidence to demonstrate a sufficiently significant lightning strike to perforate the hole so that the it seems i think in light of judge marcus this question is that he had what was in a report in the deposition to begin with about the sort of the general measurement of the hole he gets on the stand and says yeah i can do th this equation to sort of knit all of this together and you don't object and so at that point the total package is measurement plus pagan myth why is that not reliable well dr eagar did not measure the hole and ultimately he is making an assumption about the strength of the actual lightning strike based upon the application of that formula so in our opinion that was an insufficient predicate for offering his opinion on the causation issue unless the court has any other questions i stand on my brief thanks very much and you think we have the case thank you well we will proceed with the last case of the morning