immediately into the next because it's such a fascinating area and this case also relates to it but before doing so i would like to address some other issues that we think are important and then i would get to as they were presented and we have a number of issues that we raised all of which in our briefs and i'm not going to cover those all i would prefer if i can just focus on a few and actually a couple of t and the focus was the performance and the design of the roof structure and the seat belt want to roll over occurred and so that's a major distinction and how the statistics may or may not play into this  this case there is no claim that mr ricci was speeding he was wearing his seat belt he lost control it went off the road it was kind of coming home on a business trip and he and his and that there were misrepresentations of fact and that in fact the literature that mr ricci used and relied upon that say that this had a safety was false and that therefore made it  law because the violated consumer expectations defined by that advertisement and also that it was a misrepresentation at the get go what happened was judge reed decided that there was an inadequate pleading of the misrepresentation slash frost fraud claim for compensatory damages so we were not permitted to ask the jury to decide the claim of fraud or no i don't think i think yes or i don't think we met with judge or read until we went to trial we had we had a pretrial with the magistrate so you know they did not occur i don't mean as well on that but i wanted to bring that up for a different reason and that is that it dovetails into them what occurred when the jury was being charged instructed on defect and what happened was through the case one of the primary issues that judge reed permitted us appropriately to deal with was the safety cage representations of the hall and the show different advertisements and then show how the engineers valvo considered what they considered that to mean first of what we demonstrated was the strength or the weaknesses of this roof when it went to the jury unfortunately judge reed would not explain to the jury country that that needed to be addressed in the context of the evidence that the jury needed to have some guidance how do we apply all this evidence to the side where the consumer expectation was or was not met and the court refused to do that and i submit to you that that the problem is this how does a jury go about deciding the consumer expectation test nevada law does not address that there is no addressing in nevada law how ever those jurisdictions that have the court refused to do that it felt that just giving a general instruction was enough and while one can argue and certainly i did make the argument in my closing thought these are the representation is this is how you need to do this the misuse stop and as opposed to a different totally unrelated theory there is no case to my knowledge published anywhere in this country has ever said that if a vehicle rolls over that is evidence of m what manufacturers and juries understand is foreseeable and it is squishy of all unfortunately the vehicles roll over every day in this country and so then we look at the question of the performance of the car that circumstance falling asleep and when manufacturers build a car they build that with that history and they're supposed to be built so that they will be safe when there is  in that range the vehicle slid for a distance the defense expert agreed that when the vehicle began to roll it was only traveling at forty miles an hour their position was that because it rolled three times that that made it a highly severe accident error go a misuse and that was the basis upon which the trial judge instructed the jury on issues that it rolled three times statistics say that most roll overs only occur one roll at most and therefore because it was three rolls that was highly severe that evidence never came in from a valvo engineer just need to say this about the statistics and i'll come back on a bottle what came in evidence here over objection was that this was a highly severe crash and it's because it's top ten percent most vehicles roll over ninety percent of them or less ok there was no correlation with product usage there was no correlation with how the products held up under these roles there was no correlation to that ten percent involve all people becoming quite a gleevec when they walk away it was just most of the statistics show that it happens with only one roll therefore this is important to judge the safety of the product because it involves three rolls there is no way to correlate that and provide any relevant information to the during in those circumstances none and yet it was put in from the get go because our objection was overruled to sixteen agree for consumer expectation to sixteen is not relevant but i'm going to read it in anyway i'm going to let it in for other purposes the problem with that was the defense that the position roof crush didn't cause this in addition to that that the subject vehicle this volvo seven forty sedan performed despite the extreme severity of the accident very well meaning that there was not a lot of roof crush in addition we tried this case and argued this case to the jury on those facts and the evidence supporting those facts as well as the credibility is a significant attack against the credibility of the plaintiff's expert power points on appeal first of all they all go to an issue of abuse of discretion and i believe the record is very clear that justice read clearly and each and every one of these did not abuse his discretion for very familiar of course with the state law in this case was tried in very familiar with the fact that case the robinson versus c c g which is the one that the supreme court and it's right on point i don't think there's any question and i don't vehicle so they were talking about in that case to favorably with respect to standards that are in fact that even the after the date of manufacture of the vehicle i think there is no question under this case that not only the sixteen any test done through sixteen but also there was an issue within the appellant's brief dealing with comparative to sixteen numbers and strength to weight ratio much of which they introduced during their product is to let the jury hear all the evidence relating to the course of conduct of both the industry and the particular manufacturer that's what that's what both the plaintiffs did in this case and that's what the defense did in cr some instruction i thought they were entitled to some instruction to separate to the jury what they thought was the evidence only relevant on a compensatory damages you versus punitive damage they had every right to submit to such an instruction and they did not on this particular issue that we're talking about so i think with respect to the two sixteen issues as i mentioned iran of that judge really there is no abuse of this action that's the way was in a context of n c standards and not not a motor vehicle but again certainly indicative of the case as i read they made reference to federal motor vehicle safety standards in an approving manner i don't think there's any real distinction between with respect to i'd like to address this issue this is the misuse issue in some of the questions that i just listened to between the panel and mr co crashworthy in this case and yes there was that there is a lot of common sense since tells us with misuse if that's misuse of the driver yes is it misused  because the local uses would mean that the normal person took the juror if the driver took the car and deliberately rolled it over three or four times for some purpose to make a movie you would certain aspect of misuse in terms of intoxication and we'd we did not argue that what i disagree with that and part of the one of the focuses of that or part of that decision that the than a lot of the supreme court with respect to the harley davidson case honor is that when you is the way mr you is the find in the state of nevada and when you look at the two instructions that were given and the two instructions made it absolutely clear that all that means by this is reasonable foreseeability and there are frankly if you read the instructions there almost more favorable to the plaintiff than they were to the friend because they take they say several times that if what's going on here is reasonably foreseeable then it's not a misuse evidence here now the court may not agree that there was sufficient evidence for the jury this offline that this was a misuse of the product in a crash worthiness sense that the jury may have found that it was a reasonable forseeable accident in those circumstances but there was evidence of that and therefore the instruction to be given i think was proper nationally and that on that on this very issue question is if you want it's a proper instruction by judge because it is the law in the state of nevada and number two if you shouldn't have given and if that's what this court thinks is there prejudicial error here i didn't argue this enclosure honest i didn't argue this at all in clause you will not cry and the word misused you will not find the words of used in closing argument the whole focus of the closing argument was when i as i started out in this argument here and that's why i wanted the court to understand what our focus was mr coleman in his clothes issue issue of misuse and mr coleman in his clothes made it clear to the members of the jury that of all the evidence of why a vehicle rolling over would not be misused and i didn't respond t thing i said that came close to that is about six lines towards the end of my closing argument which was i if i recall is the least that an hour and a half or maybe even to our closing argument is about six lines towards the end where i make reference to the concept the reasonable for see ability and i made it in that reference in context with the three instructions on defect where the term reasonable foreseeability appears i didn't even make it in reference to the misuse instruction so i don't think in the context of this case that i think wherever the court goes on this issue with misused there is no prejudicial error here this simply and there is no record for that that there is ample support argument by myself through closing argument you're right on those facts that you were cited are relevant facts that we have that many of which i think was stipulated to between the parties so i want to jump back to a couple of the things that were mentioned by mr  this morning with respect to this and i mean i'm trying to remember from my notes here but he talked about the the  charge that judge reed gave with respect to consumer expectation and the complaint that it didn't include some additional language dealing with the issue of advertising and on that issue again number one the consumer expectation rule in the state of nevada and and it happens all the time when you try cases and you get up and argue with piece before a jury it many times it's up to the lawyer to explain to the members of the jury denial of the additional language that mr coburn wanted not taken from any case from the state in a lot of are taken from so taken apparently from from cases from other jurisdictions and we're very gives the standard instruction  mr coleman that he can argue these things i think there is no error on that issue with respect to the negligent misrepresentation and the fraud just one quick thing there i believe  my recollection is correct on their motion for new trial they did not complain about the fraud so to now bring up the fraud on her compensatory theory that was not i believe i raised that frankly when when we got to where we started the motion and lemony and the first i think motion that judge read was going to hear argument on was advertising and i'm interjected before we get into that because we saw their response brief to that motion all of a sudden for the first time saying in that brief well we've got a negligence a negligent misrepresentation negligence testing etc etc and interestingly if you read through the transcript of that argument you'd find that in an earlier comparative fault with respect to mr ritchie and some of that would have been relevant and we so in their briefs they talk about well we should've been surprised that maybe we'll hear that in a moment from mr crow but i did say during the argument on the motions in limine a that i thought volvo would be significantly prejudiced and by there was no need for me to elaborate but those words were there and we never during the course of this trial imply only or expressly in any way suggested that we wanted to try these issues and why did i say that negligent misrepresentation i just as an aside i would tell the court that i'm in the middle of a two it's trial now in stockton california where dark this week and that's why i'm here it's a different a rollover case there is a negligence claim and there is advertising issues and we have experts we have experts or managed to marketing experts dealing with that issue the rules are set up for notice so we can tactically we felt and i think is more an out given the trial of this case that we weren't really concerned about punitive damages we don't think there was anything any evidence here that we're concerned about that we were we were we were this product perform well at the testing that level did with support that they did have a test where they put i forget the numbers and i made a mistake in opening i called it too many times but i think it was twenty thousand pounds if my memory is correct it's in the record that they put vertical down on this roof to support some of the advertising that they did we felt confident that we would not have a problem with punitive damages when you get into issues of we talked about misuse statistics for me me just quickly focus on that and this last minute and a half the statistic was simply how many how frequency on a complete humility of basis are agreed upon measure of severity we talked about the analogy of a frontal impact it's easy for late people as well as experts to talk about well fifty miles an hour hundred miles an hour a rollover is not or all reason on a roll over everyone is different weird as it hit how hard is it here how high is it coming down how fast is that spinning what is the amount of energy or speed when it's lifted off compared to what people miserably test that that's that thirty miles an hour versus this me think that it's forty and that involved eighty percent more energy to do bad things the experts in rollover say there is no one measure of severity so there's various things we put into evidence a whole bunch of parameters the statistics being one of them the argument with respect to going back to the foreseeability was a severity argument not just statistical argument the burton ring the records of the morning on december eighteenth two thousand and two on page one fifteen and one sixteen got into the issue during direct of these statistics and used the term ninety five percent of judge read said that he required substantial similarity and the only way he let it in was as a as a basis of an expert's opinion under seven or three and if if someone wanted an upon argument of severity that it was three rolls that needed severe therefore it's an unintended misuse of the product so i'm very here was based upon this scene situation we presented this in it was overruled they then come in and say here all these rollovers there are hundreds of thousands of them every year most of them are less than one complete revolution and therefore by