judgment follow so why or why do you have an uphill battle and i guess what i want to suggest is the experts that i have put forward in this particular case  received by the federal courts for years and i've had them reported cases which are shared with the court where other district court judges have said professor w know what happened but all of a sudden they're born down the road normal speed and all of a sudden the mourner cycle starts hopping skipping and hopping and the reason for that is the tire actually cd in the case of a flat tire or a wall up it is required but they don't have that with respect to motorcycle tires and one would expect that it would be because if a car tire on beads you're were unqualified i read his opinion a little bit differently than that i read him to say it we did especially with respect to professor oral that the methodology that was you know underlying his it off the road a long time ago but this is a defect in the failure of so i don't run out of my time i also want to address the elements because that's originally how i got into this case  which is how they  failure to do so in your view that the evidentiary basis for the allegation of the defect yes all of that testing testing by the national high testament they have four different tests right right so you have the you have nits so does the recall there's no there's no question about that happened are you aware though of whether whether we're  scored my name is a bot it's my privilege to represent did your dumb up tires don't america because the daubert analysis is a case specific analysis i'd like to spend a few moments providing some context to the tire in the room interface that we have the tire itself is in a new eighty five b sixteen tire that was manufactured by goodyear dunlop tires north america and its buffalo plant in the twenty third week of two thousand and twelve it was designed manufactured for certain touring motorcycles of harley davidson of the model year two thousand and three through two thousand and seven the rim on which it was mounted was one chosen by harley davidson is an approved room by the tire and rim association the completed application of this tire with this room is an acceptable have to cation by the tire rim association flash is something that comes about in the manufacturing process of the tire the tire is put together the components of the tire are put together and at the end of that process it goes to what's called the curing  piece mole in at the junction of the mole which is right above the beads fit area is a slight opening as the rubber is subjected to the heat and pressure there is an opportunity for a small piece of rubber to form in that area between the mole we have provided to judge simon and the court below a little piece of flash which was filed with document three thirty eight in this record in this was another representative sample of what that is it's it's of a very small thin light residue of rubber that's trimmed off if the final finishes spec ssion part of the process is it always that thin yes always gets beat on seeding has to occur because you have to have an opportunity to change tires when they need to replace lines are mounted on the rims through use of specialized equipment where they're pulled over the bead seat area and then pressurized push the tire against the rim flange in order to change out that tyrant you have to release all inflation pressure in then with machinery again apply significant force to the sidewall of that tire to push it over the big when tires lose their air they are subject to be done seeding motorcycle tires travelling down the interstate with loss of inflation pressure as we have in this case because of the puncture they're subject to beat on cd and simply because of being on seats because of the lateral forces the natural forces of the roadway in the motion of the motorcycle against that roadway that does not mean it's defective in fact mr worley has testified case which is part of the record that if in fact the tire loses air pressure and it's going down the interstate or down the highway that it will and see in this particular case we have an issue as to when did the unseating occur mr de rose commented that there are these gouges on the rim which he uses to support his theory and it unseated as it was upright travelling straight down the highway those jews are on only a third of the room mr worley has admitted that the gadgets are actually a lateral gadget and we submit that those gadgets support the defense theory that it happened as the motorcycle was going down subjected to the lateral forces of the pavement which then allowed just that one third of the room to hit the pavement and cause the lateral galaxies had it happen is the motorcycle was upright going straight you would have had it around the entire room as opposed to only on one third of it so then we turned to the the issue then is mr worley needs to overcome the be accepted science in the industry that this can happen absent a defect in he needs to establish reliable scientific basis for his opinion that this small amount of flash is what caused this tire to unseat he pointed out that mr worley did not measure the fletch and cannot say how much outside of tolerance this splash was and i should clarify that point a little b there is within good your dunlops many fracturing standers a tolerance of a certain amount of flash that is acceptable it is to be trimmed off because in good your d perspective this is cosmetic and it doesn't impact the quality standards that we here for sending our tires as original equipment to harley davidson it is the appearance of those tires that is important to us so that when harley davidson receives them they get a quality finish appearing product it's about snow i'm glad you're right this is what i want to ask you about this exact point is there a certain level at which you can set aside the facts of that set the facts here aside for a second is there a certain level though at which the flash would become so excessive there is too much extra flash that you could run into it concerns about safety or is it there in other words is it purely cosmetic regardless of how much extra flash terrorists well i suppose that you could get to a point where if it's so outside the standards in not i mean a huge amount of rubber around the side wall that that could present some type of factor in terms of the bead fitment right but in these particular cases we have it's  ditz it's trimmed off to the point where really just a very fine then we're talking about point zero zero six that's what you said it's always it is never anything for the man it's no it's to be trimmed off and in fact the amount of flash that was on this tire is comparable to what i have here in my hand and it was only on part of the the beat area not all of it and what happens is it's not really in the  fitment area because there is the interference fit that's created by the b being smaller than the wheel diameter so that that fits down that the base in the flashes were moved from th so the how how then in the in your experience i know what judge simon said here and the you know the points that that you've raised about his conclusions on the lack of reliability of the expert analysis here how in other cases do you see experts approach that the examination or testing of a tire in the face of the alleged defect in other words dr professor to not do it in a reliable way in your view and in judge simon's view what do you see other experts do well either they subjected to some testing a testing methodology or they have authoritative treatises that they can rely on to support their opinions that this is something that doesn't fact cause and you don't seem that your experience that's doable in other words it is i mean you may join issue with conclusions and what have you but it's doable yeah and in fact mr worley has done that mr worley in other cases that i have had four or this tire company where mr worley has been an expert he has performed testing he has relied on various authoritative articles as a basis for his opinions in this case he has none of that i mean he has nothing that he can point to as mr de rose said he is the only one who this said that this flash is something that causes be the he has up but because my time is running low i don't know that i need to repeat all the daubert factors that are that are in my brief but sufis to say that he has really satisfied none of them there is really nothing about this theory that is based on any reliable science whatsoever other than the fact that mr worley has said so the  opinion here is he did in those cases he has no other basis for it other than the fact that he thinks that this be unseated for the very same reasons i will also point out that in the combat case which is one that i had and  now what he has done in this theory is he specifically admitted to me that he that that theory is not plausible and he rejects that now he tries to tie it to this then shaffer issue which also lacks any scientific reliability no testing no authoritative articles to back it up it's simply mr worley saying so the quickly i'll just comment i guess that as to professor levy there's any argument as to his opinions in this case i think you has been waived it's not been raised he certainly is not judgment to us on all of these factors the manufacturing issue is one that we've talked about with the flash there is no design issue by admission there is then no warning issue in this particular case david shelton on behalf of harley davidson may please the court we we want to make sure the court is is clear is to why we're here why we're not here this morning we've heard a lot about the tires we've heard a little bit about the helmets we haven't heard anything about the harley davidson room we haven't heard anything about a tire pressure monitoring system our position is that those issues were not raised during the initial brief and they've been waived  reviewing the reply brief that was most recently filed it goes out of their way i think to abandon all of those issues they say very clearly that they and their expert found the room to be fine which they had to based upon the opinions and record below with respect to the monitoring system they don't even try and make any argument in their ply that it's it was defective or unreasonably dangerous at most they say it might be an improvement upon the bike but that has nothing to do with the standard of of motorcycle minute factoring back in two thousand and six so we don't think either one of those issues that leaves us here with respect to the tire and as you heard this morning the plaintiff's claim comes down to the fact that they believe this excess rubber was not scraped from the tire before it left the factory and as it's clear from the record we had nothing to do with that and we had nothing to do with the distribution or the sale this particular tire this was a replacement tires bought several years after they purchased the used motorcycle from us our position is under the under these circumstances there is no basis circumstances just point out along those lines that because this is a manufacturing defect and not it does the fact it's a claim that the problem is something that should have been taken care at the factory that there's no way that harley davidson could be held liable for that when they have no involvement in the process with respect to this specific tire of the court has no questions of harley davidson and will ruin our very finesse support to a firm summary judgment in favor of harley davidson myself mr chalmer the company and now inc as an internet retailer it sells many items in the motorcycle industry including leather jackets motorcycle helmets and so on  helmut ventures helmet ventures was not named in the original complaint or the first minute complaint it was named in the second amended complaint but because it had it was filed more than two years after the statue of limitations the second minute complaint leave was not granted to file it for toner what what if any legal significance is there to the product recall you say is that  any legal significance in your view given the plane that's brought here i think posing council believes that that's the sole basis that all that was recalled and so therefore it must be defective you know by default i do not agree with that proposition in fact i completely disagree with it often times there are recalls based on a number of items for example hamburger meat can be recalled because of listeria or say monella it doesn't mean that every package sold in the wind necessarily is defective it has to be it certainly is suspect and so obviously the home in question needs to be examined in this particular case mr turmel was not wearing a helmet sold through the now so he does not have a claim against my clients only mrs tim did and what she did is a few weeks after this incident is she purposely discarded her helmet and therefore we never had an opportunity to inspect recall for what what what was presumed to be the reason for the recalls her car and it's my understanding although the codefendant the teagle defendants were no longer defendants in this case they were the importer and distributor of the helmets from the chinese company what they did is the the how much were tested there were four of them tested they did not meet the requirements and therefore there was a voluntary recall teagle is the one that under that under took this responsibility and what they did is in two thousand and twelve they recalled helmets that were sold in two thousand and twelve it's my understanding that the proposed letter that was to be sent to purchasers of the helmets was to be approved by the government product presents or a you know a serious risk to motor vehicle safety that voluntary recalls often happen because a manufacturer doesn't want to wait for a mandated recall for all kinds of reasons right because the question i have though is is more legal and that is do you know of precedent that holds that the recall itself as an evidentiary matter can establish the defect i do testimony of dr harry smith and in this particular case of course the helmet didn't cause the accident or it's not alleged to have caused it but again what we're dealing with here is a crash plaintiff in this case mrs tim sustained enhanced injuries there was no testimony as to that what type of head injuries did she receive she didn't receive i believe mr tim purchased a half helmet which is the smallest helmet you can purchase doesn't even cover your ears versus a three quarters helmet or a four home that he sustained pretty serious injuries with a fracture of his skull near the forehead erie she had a concussion type injuries but again the accident happened according to  eyewitnesses at about sixty or sixty five miles an hour according to our expert no helmet is going to wish the end of that type of impact they're not designed to  protect anyone from that type of severe impact that the district court has determined that there is no basis in a very well from four separate decision it's actually the first decision on the first opinion or an order and it also held that there was no private cause of action for any violation of federal regulations citing an eleventh circuit case and also found that there was no post civil duty under indian law for these reasons we would request that the court affirmed summary judgment in from the truth you're done not themselves say it a flash is dangerous and you'd have to be triggered off of the tire before the tire leaves and if they cannot make proper why they wanted us to do this particular destiny but we did it because they asked us to do it now if they don't they don't want to wrong all about what's being reported they don't work they don't want the general public and news your honor may remember i submitted about twelve affidavits from experience motorcyclists we have been using harley davidson products for years many of them have experience the preferred recommended tire for a car we placement tire for a harley davidson motorcycle it's prominent in order literature people stand in line to collect dead yearly year the sales catalog bell which i could read my notes because we look for a better deal we can bud more products and we get better discounts and we give a little bit more credibility that's what's going on these companies are all interchangeable