damaging nearly all if not all of the personal property owned by the turners and the house keys who live next door shortly after the fire the fire was investigated by many parties including the railroad that's one of the railroad retained two experts in the area of fire expertise that is the origin and cause of fires one of them was mr don howard from idaho  really the issue for this defendant but that does raise the question that basically we're here to talk about and that is rule seventy three says that an expert can rely upon that and other information and express opinions that an opinion or is that a fact it may be the way but in any event under rule seventy three an expert who reasonably relies upon that type of data in his field should be entitled to express opinions rules and you take this situation outside the context of just this case i'm concerned about what this means for other cases for example if i have a if we have a medical case do i have to endorse  plaintiffs were given the armstrong lab report and it looks to me like it was just much later that a motion eliminated was made so that i mean frankly looks to me like both sides correct one statement the the actual armstrong laboratory report was for used in the previous coverage disclosure phase with the original report from mr howard so they actually had to report long before that they raised the burned patterns etc and the fact of the the lab sample that and when were the plaintiffs given the information that howard was like right off right off the bat i said that right out of the chute and they didn't ask the court for an order at that time saying that the lab couldn't be relied upon that's correct your honor and you know they nor you s pretrial conference and then the office of proof to give the information to the judge to make its final determination seventy three when they were trying to yes and so the judge didn't raise it like at the start of the trial in other words it wasn't customarily relied on seems like the way the district court viewed here the expert was not given his own opinion relying on the armstrong lab report he was just kind of adopting the armstrong way of opinion and example it's the kind of thing that's customarily done by fire experts they may not have the independent knowledge or ability to run the dirt through the machine which is not unlike for example a doctor who does not have the independent knowledge or ability to run the m r i machine but they routinely rely upon that and if a plaintiffs is permitted to at the last minute come in and save you know right before trial and say hey you didn't endorse glad technician you didn't divorce the f that the blood test wasn't done in a faulty way nothing to say that any lab data was not done in a faulty way i think rule seventy three recognizes that as a practical matter it relieves litigants of the need to go through the time and expense of authenticating everything it's those materials are of it of the type reasonably relied upon by experts in that field and so again i think we were in finals to rely on rule seven  three it wasn't challenged by the plaintiffs that's all the absolute last minute at a time when well we don't we're not we don't know if the two uses well again your honor the evidently the evidence would have been admitted as it has been in cases and just for the padded case for example the evidence would have been admitted soley to illustrate the expert's opinion it would not have come in and necessarily in of itself it would still be a list of all hearsay but it could be and was relied upon by the experts so again i think this is something unusual if there are any other questions on that issue i'm just going to ask you whether you think you've spent a number of cases in your brief where experts will live on some kind of report like this and they're permitted to but he talks about the deep burn patterns he talks about the fact that the the the fire appears to come from this debris pile that's on the reverend wright right of way the burn pattern indicating it's going back for the railroad track  on a personal level i'll grant three that the loss of your personal property is distressing the question though is under the case for montana money is that the type of extreme distress that no reasonable person stoic man he simply said on the witness stand that he lost his house and he felt bad about that but beyond that there was no suggestion of extreme emotional distress none of these people  good morning my name's projection i represent the scales he's in the turners in this fire case i think we need to put the fire in factual context this happened in october in montana and the testimony undisputed testimony was that the weeds and grass on the right away were two or three feet high and it was a very very dry my family law my hand a statute provides that the road is required to keep it right of way free of often possible materials and they didn't do that this was a very dry year and we had these this high grass at the point of origin we had five people testify that there was no fire and then a west firing train went by and then immediately there's fire and we have this raging fire that goes across the prairie pushed by winds of sixty miles an hour and completely and totally destroys these people's property they didn't have a toothbrush left everything was burned up we have hope for way between the point of origin and property about a mile maybe a mile court mr jackson i don't doubt that you have you know good evidence prejudice and the real seventy three than on the reasonable reliance to look what an expert can rely on let me say that the reasonable reliance issue is a red herring and he here's why i want to say  i think the district court can be affirmed on the basis that there was no reasonable reliance in this case based upon the offer of proof that the railroad made and what they were the district court found from all the breach that were kind of a general thing like with you've called a different witness that's just weather experts in that field customarily rely on that type of data here's why i think the district court can be affirmed on the basis that there is no reasonable reliance here and i think hydrocarbon sniffer any past that sniff around this alleged degree pile and he didn't find any indication of what accelerant none he dug up five samples put them in to this laboratory but the reason he did it was to find out what sort of material it was he did not even suspect that there was an accelerant and the reason why is because of all the information that these investigators ha i'm usual and i'm calling the observatory to make sure that no comet no meteor hit you know montana that night i'm just checking out all kinds of things that can start fires and now he gets a bunch of reports why can't  say for the purposes of argument that this man this mr howard reasonably relied on that lab report ok that does not say that that lab report that finding can be told to the jury then you have to look at the that substantiated frankly a very soft fact finding of any sort of accelerant in that in that file now the last report comes back and says this is a material deadline which was long before this even got to trial where we didn't disclose anybody from the laboratory to come in and testify now on this balancing test there's an it's called the two thousand amendments to the federal rules of civil procedure and evidence a preliminary analysis mr joseph was a member of the u s judicial conference advisory committee on the federal rules of evidence who promulgated the amen states that the amendment number one presumptively precludes disclosure of the inadmissible data to the jury so you're right there is a presumption against disclosure on this balancing test your honor he says the balancing test contained in rule seven zero three is just the opposite of the normal balancing test in rule for all three instead of allowing the evidence unless it's prejudicial effect rule seventy three bars introduction unless the probative value substantially outweighs the prejudicial effect so you start with prejudice and then it's the burden of the proponent to prove the kroger devalue will he the district court rule the rubber and hand then that and one of the reasons one of the pin reasons was because this lab report was ranked your say but there was absolutely no support for the technical or evidentiary or scientific value or accuracy of that report and i submit it's it's no coincidence that  the federal rules of evidence was amended contemporaneously with seven or three because i think under in undertaking this balancing test under first rule seventy three the district court has to be mindful of it's a gatekeeper role under seventy two in other words the expert can rely on the hearsay for his opinion but you can't tell the jury you about that very thing now unfortunately in this case we don't know because the rubber would never call mr howard the district court made it perfectly clear abundantly clear saying he's i think we could bring in the armstrong but we don't have them today so it was there and the ability to bring in the next your  under rule twenty six the district court set a deadline for simultaneous disclosure of experts along with all their disclosures that are required under rule twenty six and that was that deadline was i believe trial through well first of all they didn't do it in january they didn't disclose anybody from armstrong laboratories as an expert and then they didn't do anything at all even go and i've got a list of the perce motions that were present if you the district court on this very issue the first one was in many of two thousand and one where we made a motion in limine and saying mr howard should not be able to talk about his findings because it's rank hearsay there's no scientific give us additional time or waive the deadline for the squelching experts and let us comment and so that gives the plaintiff time to take his deposition all that they never did that they never asked the district court for leave to add anybody from our from laboratories as an expert in this you file your motion again please it was in me of two thousand and that the district court also set a deadline for all motions in limine e and we made and by the way mr howard's deposition was taken i think in february of two thousand and one and we made our motion in limine e in accordance with the cour deadline consistent with the court's deadlines think they should be able to talk about this because they don't have a witness well iran would never ever want to strive to get an armstrong laboratory when it's to the district cour laboratory alleged finding so i want to say one thing about standard of review under four three the standard of review of the district court's decision is wide latitude and great discretion here since we have the reverse  the cases that i did find i can find that one is from the second circuit and it's united states versus j don't know i cannot say right it's three twenty six f third forty five second circuit decided march eleventh two thousand and three and that case didn't really deal substantively with seven or three what what it is the issue was whether or not the investments to rule seventy three were going to be applied retroactively and the court refused to apply the amendment retroactively because the jury verdict was in january of two thousand and the and then again going to fact until december of two thousand but this is what they said when an amendment such as the amendments to rule seven or three over rules prior precedent this court generally does not apply the amendment retroactively so it was kind of picked up but what this court was saying was that the amendment to rule seventy three over ruled cracker second circuit precedent which would allow sense that the very unusual important evidence get considered by the jury and the witness wasn't deposed and you didn't have a counter witness ends up pretty and satisfactory in my mind but with it being a new relying upon  he said that he traditionally does but he he didn't send it to the laboratory for the purpose of finding gasoline he sent it to the laboratory to find out what's sort of sort of material it was  laboratory sent back and says one sample out of five contains something consistent with gasoline now i don't know that the jury should be able to hear that when there's no testimony or foundation for the basis of the finding of the evidence for that the jury's verdict there because they didn't make a motion for directed verdict they didn't make a motion for judgment as a matter of law they didn't make a motion for a new trial they're trying to use rule fifty nine motion to amend or alter the judgment to challenge the sufficiency of the evidence which they didn't do prior to trial or during trial and under those circumstances we don't think that the court  hunter after the judge is that some ruling that's just the housekeeping procedure of course sure i feel and he says i feel we should we ought to make some kind of offer seems to me the easiest way to do that would be through mr howard take a little break the whole take five minutes i won't read it all but then the court goes on and says well isn't the armstrong of lab report itself a sufficient offer normally would the words i would have thought he would testify i get promoted to testify i would think such and such a background and it looked like the court may have talked mr hedger out of that no there was there another session that i'm  there was a later session after several requests it's found it your one twenty three three one twenty seven or in the transcript that pages ninety nine through two thousand and three and it was testimony from mr howard and he was asked