a mechanical engineer was fifty years of experience including experience designing and building a handheld power tools yes those were for commercial and industrial applications but it seemed like the re no expert except wanted who worked on the particular solder in its own research and development well let's review what he said mr donahue he was expert for the respondents you study had no issues with mr buckley responded asserts that there are many types of expert witnesses out there and that's true respond i want to see a material sciences expert in this case and i agree that would probably make it a little better but to save a mechanical engineer with quick release type system and how the iraqi design requires you to put a fifty above convenience in these types of things you should have been able to tell the difference you know single actually system which is accident prone because when you're contrary to what the plaintiff's version of what happened was is a understand it that your client said i had inspected this this device in there were no problems with then or i would have used decision and that is one of the problems that the plight of the not testify that there was no issue you testified that there you didn't see an issue and when you look at the actual drives that mr buckley the facts actually are it's not testimony actually it is and furthermore a case of  in time to believe who did choose to believe you are a critic who they choose to credit but when you need to think show is how the court that the court used some improper means were you some improper judgement  n making the choice that seems to line up with with your opponent as opposed to the simply being wrong because it's consistent with an opposing opinion well the facts  bucket when in fact this wasn't even this wasn't a drawing this wasn't a computer model this was a an actual working specimen manufactured by responded as a matter of fact put in the stream of commerce and purchased that had the handle that you know we've all known and grown up with these chocs they use to screw it on screw on power tool safety components respondent specifically decided to design a way that safety feature for this quick release type system there's no need for the for to add a nd the convenience of finding the  mechanism in unscrewing the handle here when it makes it into a failure prone system as mr buckley put in his opinion just part also stated that mr buckley failed to rule out kick it fails to even acknowledge that mr buckley measured the eccentricities of the spinning blade of this thing which is part of the definition of kickbacks in respondent's motions and he and found no back and also fails to acknowledge the plaintiff's own testimony that and the plaintiff was was there he was is space was was inches away from the stool when consideration the plaintiff's testimony in grilling out alternative theories especially alternative there is that just come out of the ether like this oil and and furthermore and  when in fact it makes the case stronger and makes mr buckley's testimony better so this idea responded intentionally designed a way as a safety feature the screw on handle method that mr buckley brought in but as part of his report and was completely ignore think mr buckley should be an expert in a lot of testify in this case but in the event that he shouldn't be missouri does not require a law or does not under power we need the screw or a for some reason they don't like the screw method something else that's going to keep the observer handle on it and though that brings us to spontaneously exploded now the whole purpose of a spider jet is to fly even though it is designed to have multiple explosions and it's can bust an engine every  if sick in will or decided to design a way a safety feature of a lighter so a child was burned all know it was watching that kids would be allowed to proceed without an expert if the wheelchair and harrison was designed with a car type cigarette lighter or something like that for convenience on it the result in that case would be dissent if any of these cases were brought in missouri state court they would all see and heard and this case is further differentiated because we have the testimony district court did not abuse discretion excluding the testimony of philip buckley i need to explain two quick points that help me illustrate why there was no abuse of discretion here what is a product liability syrian the nd is regarding the stool with respect to the claims in this case there needs to be some defective condition that allowed this handle to come off and proximately caused the the injuries to the plane up with respect to the tool itself an important consider duration here is that this tool i designed to have an auxiliary handle that detaches not all uses of this tool require the auxiliary handle to be present a user can slide lock in to press the lock they had a release button and take they had a law or they can put it back on so the handle can come off as intended they handle could come off theoretically because there's a great breakage to the tool or the tools broken or it might come off because there's some defective condition that proximately caused the accident that's what judge the district  focused on that rd point and that's why we didn't need mr buckley in this case the district court correctly pointed out that this case is not a simple tool it's not it's complex there are multiple things going on here there are forces imparted upon the various surfaces there are material science issues there are issues of how the tools being used an expert is desk is here as i just pointed out the handle could come off in three scenarios a broken tool because the user inten and because of some defective condition the jury needs an expert to help guide them to that rd position if you're the plaintiff to prove their case without that how do they get their expert testimony is required here and the  now you could just press the button and it comes off without sliding the extra lock just one motion the handle comes up that's what the defect theory that's been advanced here is and whether or not he gets to go to vote for the jury and  provide it theory is the question that the district court looked at and the district court determined that that figure was not reliable and the report reaching out opinion also recognize that will seven o two is a flexible standard that asked whether or not that defect theory was reliable that's the issue under rule seventy two for this case was that opinion reliable and with respect to reliability d there's not an exhaustive list of factors but two important ones that the district court spent a lot of time looking at our testing and ruling out alternative theories with respect to testing the plaintiffs here haven't taken really the position that there need not be any testing but the district court recognized making sure it wasn't abusing it discretion they reckon that this report recognize that testing is not always require it's not always required when the expert has certain experience that allows the experts draw conclusions when that experience is reliable but the district court pointed out why buckley doesn't have that experience in this case is that word for it and i just want to be clear i am not taking the position that he's unqualified overall wholesale that is not our position our position that is that he doesn't have the requisite experience to be excused from testing his defects here and in the district court or walked us through why that is he's not done any testing on power tools he doesn't know the applicable industry standard for the school he doesn't know of plaintiff is using the correct tool for the job he's not done he needs to test he needs the test because of all that he doesn't have the requisite d experience now has he tested well the plaintiffs in this case the plaintiff in this case the appellant says well yes he has tested but what has  enough to get before a jury and say i've checked the testing box under dauber and now i get to go before the jury he needs to do some testing to prove the point prove the defect there make it a reliable theory and what is he done he's taken a broken tool there's no dispute that the was broken after the accident and he's pressed they had a release button and the tool detaches from the hand other broken tool but mr mcmahon the plaintiff in this case testify that it wasn't broke so how does the handle come off was there where was it susceptible to where where's the testing to show that this tool was susceptible to where my clients can't just come up and put products in the market without doing anything we've done testing multiple testing we did handle insertion tests we did a drop test we did a poll test all of these things are on the record but mr buckley's to know that he's just done something to prove an undisputed fact and that's not enough to get him before the jury and his defect theory i also want to point out alternative causes now i'm not talking about some strange cause that is random that nobody can talk about here or think about that's not what i'm saying the manual for this tool points out that kickback is a known kickback or recoil is a known phenomena and i don't know all of your backgrounds and if you've ever used a circular saw or any kind of power tool but when there's a spinning blade kickback is something that could can occur it's an obvious alternative cause he doesn't have to rule out every cause in the district court probably really points that out but the obvious ones he should look into so kickback is unknown possible alternative cause how about wood carving blades what's the effect of using a wood carving of this blade on this to a larger arbor hole then the arbor so that's problematic and again i i don't know everyone's backgrounds but if you think about a pair of shoes if you put on a pair of shoes that's about two or three sizes too big it's your feet are going to cut to move around a little bit and that's what happens with an ar is bigger than the shaft potentially so that's another issue that could present a problem that could lead to kickback instability here so i know i don't think mr funk got to this part of his argument but in his brief he does point out that mr buckley tested for kickback but again what was the test and what was he really doing there he tried to cut wood with the saw he didn't actually experience it could kick back but we know it's a given that kick back it's a known phenomena so if you do a test and don't experience the kick back what are you really fighting you're not finding anything you need to fight what are the forces imparted on the two with there is a kickback scenario can the user lose control can we see the type of damage that we tool such that the damage was caused by the kickback due to all the things that the plaintiff was doing wrong as opposed to some defect he's not done any of that type of testing so he's not ruled out those alternate crosses and his deposition talks about how to test  eck but he didn't do that he talks about knowing how to calculate the purses of dropping a tool what happens if the plaintiffs drop the tool and that's how the damage occurred he knows that that's something he could test for but he didn't do that and so he's not ruled out these alternative causes and briefly i want to touch on the fit issue with respect to whether or not his opinions fit the facts of this case there was some testimony about not pressing the button i take it i would take a close look at the plaintiff's testimony regarding that at his deposition he pondered when he was asked about whether he pressed the handle release but whether he could physically stretch his thumb and touch that  it wasn't whether i don't know if i touched it at st he was wondering if it was a physical possibility the follow up question was whether he did that and he said no there wasn't this wishy washy i don't know i might have i could have that's not in the record it's simply not there he was just saying whether to physical possibility and then he clearly said that he did not do that with respect to the other eight and still on the district court's opinion to exclude mr buckley the other area of that the district court addressed was we can't even get to those kind of questions because at his deposition he repeatedly testified that it was an offering things that as alternate sides now i plug my editor here because he has come up with various things that he is on to the handle in the report mr buckley talks about the screw handle he talks about it but he also notes that there are utility issues with it why well screws can be lost ok is d the product now the more dangerous because m doesn't have the i'm sorry mr mcmahon doesn't have the screws and he can't even put the handle on and now he's using it without the handle who knows you know that is an address but he admits in his own report that there are utility issues so i suggest that is not alternative site we want to test it we want to explore we want to do the things that reasonably careful manufacturers too but we didn't have that chance because when asked if point blank if he was offering any of those other alternative i'm sorry any of those past designs because this was an older design tool if he was offering any of those passes and tools is an alternate design what does he say i'm not i'm not he's not offering that as an alternative design we can't come up on appeal suggest that things that the expert said are not alternative designs are alternative sites and i could go on and i want i think it's it's in the briefs but other things that are important to point out just briefly in terms of these other things t dimensions of the wedge you know he says things such as he doesn't know why you would make latches those dimensions well those are questions the jurors should ask experts you don't know why they're that way well what we should do it doesn't tell us in terms of materials he doesn't offer a an alternative material property that we should have as an alternative as i but when pressed at his deposition he says it could be pique he doesn't know why it's metal again he's asking the questions that should be in the jurors by his and in fact it's not surprising because he has no issues with the manual he testifies in appendix appendix of exhibits page one hundred and sixty three that he has no opinion that the man used to fish so the district court did not abus testify is not fair there needs to be some abuse of discretion and it has not been set forth here at the fisher court did an exemplary job of going through all the factors applying then and explaining why mr buckley should not testify cases regarding the wheelchair and things they deal with things spontaneously combusting this is an all tool it's not a new tool it's been around for ten years and so it's not a case where we can simply infer the existence