of disputed facts that the courts if for want of explanation went overboard to decide in favor of taser international the pelleas in this case judgment issue i don't believe that's the province of the trial court and that we cited no less than chan i think eleven factual issues material factual issues that are questions of fact that could not have been decided on judgment and i mean i'm not going to go through all those i have to in the court is familiar intimately familiar with those questions of fact that the court the trial court also misapplied the substantive law and granted under diversity jurisdiction the trial necessarily must decide issues of state law how i would leave the trial court is somewhat limited in that capacity in that it's not permitted to make new law under state court provisions which used and what the trial court did was said that we believe or the court believes that use requires actual touching or application of the product can the court regrettably got distracted on this use issue because under the alternative and the a political risk benefit test there is no use component and in fact what the california supreme court has said in parker first and then the product liability case before the court of what the court cried on monday i think that factually and i don't want to speak for the trial court judge is she i think the intent was to try all of the factual issues in the case has been consolidated certainly for discovery in procedural points i don't believe and there's not yet a motion pending to bifurcate the two issues i think that one jury it would not be  for one jury to hear one factual and then the other special status process ideality i think they're all in extra thick inextricably intertwined and i think as to damages and accountability it would almost be analogous to a compar liability and whatever the value of that case is to what extent if any is taser responsible or did they contribute to that death because they designed the m twenty six and clearly by their own admissions and everything in the record they designed it specifically the look feel and operate like an officer's handgun there's no question that they recommended that it be carried on the officer strong hand side which are all design issues that that was after handgun configuration will be more effective and clearly in some respects it was the old taser trying with a flashlight configuration that you could point at and could hit the broad side of a barn certainly delivering this in a handgun configuration was more effective for the delivery of the taser darts the problem was when they told the officers and by their own admissions in their own filings they say it should be mounted on the strong hand side to take advantage of the officers muscle memory and training to the taser yes it was the only taser available was the m twenty six at the time of purchase and the time it throughout this period up until the death of right authorities to my next question which is the dual holstering if you will take advantage of the muscle memory in the training because an officer would be using his we can decide and there is no training or muscle memory for an officers we can side in the majority of cases that we thought offsite that would defeat tazers own questions but i think there are questions of fact that we need to be borne out with a jury as to whether that was a viable option whether that was an appropriate option the issue here is all of these questions of fact should not have been decided on judgment and should have been presented to a jury and maybe a jury concern or determines that yes all of these things and there i could have should have would have done but these are not questions that should have been decided by the trial court on summary judgment incident a weapon confusion yet they said nothing and the facts are that the month after that second maryland student with one taser had their initial public offering of stock i believe a huge factor as to why they would not want to make that weapon  so when that second incident happened in minnesota all the warning lights went off for all a sheriff's department everybody in the industry said who knew about that said time out we've got to come up with a better configuration maybe we need to go to the cross hand side maybe we need to go that we can site and in fact taser was at that time developing a better design again another question of fact is there a more efficient more cost effective design and we now know that the x twenty six replaced that taser international since the tories case the third incident and the only thing tally has now implemented into their training which they require don't ever put the m twenty six taser on the strong hand side because now we know although we didn't disclose until the third incident this one torres that there's a huge weapon confusion issue when was the first warning given by peter and in what form april two thousand and one they sent out this client bulletin to tens of thousands of people anybody they've got a business card at a conference or whatever they stick them in their email list and they massed some of these things up the key is that there are wasn't even a client in april two thousand and one and would have no reason to have one we don't even know if they received but if they did to have paid attention to it because they weren't looking at tasers it basically says that there's an alternative you might want to wear these on the cross hand it didn't say we've had weapon infusion issues it didn't stay there been accidental shootings there was no warning warning then the prior incident involving officer noria well as in the last case i mention so you tell their expert and i sure as commander said the sacramento incident where there was an actual shooting not fatal was viewed as an anomaly receiving you know signals that her senses were giving her she didn't look at whatever weapon she intended to draw and first place but she also did not even feel that her testimony is i did not feel the molded grip of the clock i did not feel the trigger so there's no evidence that any tactile sensations had anything to any causal connection with the accident and there's no evidence in the record that there is any similarity objections and even assuming that the evidence were competent heels testimony regarding this being something being an aberration another thing setting off red incident where she drew back did not shoot the suspect the proper response by her supervisor lawson should have been to send her back for more training and not only that but that they should have seriously considered that he said what they should have probably done was sent her back to start from the scratch and we do the entire weapons training program and that anything else would be a supervisor not doing his job so by lawson which again frazier indicated with a completely inadequate response that the correct response should have been to re evaluate everything and probably to send her back to redo the entire training back to redo the training course completely but certainly just to tell her well go off and practice on your own and see if you can get better is as a matter of law and inadequate response to get in frazier's testimony j yes she followed lawson's recommendation to your practice drawing on and then practice drawing the other and in a sense in essence come up with your own training machine and see if recommendation made by taser to carry it on the strong side in fact the record and accept of record h three ninety two if you go through that deposition testimony line by line but that's not necessarily the same thing as recommending a strong side draw versus a weakside draw remember the reconfigurations with the strong side draw the officer draws it in the normal manner with his dominant hand and the weak side draw he reaches over with his dominant hand and draws it from in a left hand non dominant side for me would be the left hand side poster which is closer to the normal hand and transfer to my dominant  issue about inadequate warnings there are only very limited situations in which a lie that it can be imposed on a defendant where somebody with the wrong weapon and they're carrying the m twenty six that's clearly a question for the jury as to whether or not use is required to answer judge question the reason and the trial court made the leap of defining what use could in tail and in this case concluded that it was not used there's a reason the california courts have not defined use because on the rest benefit test which is the political test used is not an thinking she was clearly thinking and there's no evidence otherwise that she was thinking she was going for her or her case or the issue of the holster whether or not the garrett could have gotten a different holster or whatever when it was recommended  these cases but this is a tragic loss of life in the city admits there was negligence involved in the incident and i compliment you for your candor on that you can continue to litigate these matters and decide whether there should be product liability whether there really is a civil rights case involved and if we have to we'll decide those but i would like to suggest to you that we have a wonderful mediation unit in this court that is very adept at resolving cases like this these are employees of the court they're not retired judges and lawyers in practice with conflicts of interest they're only desire is to bring cases to resolution if that appeals to the three of you on behalf of your clients in your client's legitimate interest in the circuit mediation offices at the bottom of the stairs to the right as you go out and they have full power to take control of the case if you decide to mediate it but this just seems to me to be a case where you ought to try to resolve it if you can get this family paid for this tragic loss of life put these product liability and civil rights questions behind and get to the goal i think that you all want to get to thank you so i just offer that thank you both for all of you for your argument decision and the court will stand in recess for the day