his opinions and to not summary judgment indeed in recent years mr barry has had every one of his opinions about the need to have doors include the standard equipment and stand up for slips admitted in state and federal courts the district court noted and i quote the man has clearly made himself an expert in this area of law so given the quality of his report and his testimony the daughter hearing one must wonder why did the district court exclude tom that legal question is whether or not a plaintiff design expert in a utah product liability case had to choose one and only one alternative design for his opinion to be sufficiently reliable to be admissible the st three pages of the district court oral argument oral opinion he says over and over it mismanaged this file and that is evident by this finding that i'm going to talk a little more about now  admission of the experts opinions governed by rules seven and to this error result in the district court finding that expert bears opinions were unreliable because in its view they were uncertain to be expert  need for door could be satisfied and noted that judge carson in the st organ that this morning and referred to photographs in the briefs if the court would look at both our original brief and i reply brief you will see actual photos of doors that are in use in the real world that were discussed by mr barry as satisfying the need for a reasonable alternative design or you had to do was show a door and that and your were done no sir not at all but you he did more than that he showed the door he showed how the door would fit he showed how doors in general have been used successfully in the real world including the rainman door which is a spring loaded door that is not had at a accident involving this particular crush injury so it successfully worked in the real world he talked about how the worst one substantially similar side stance stand up for clips and also had success for other users and like warehouses and we quote all of this in a reply brief insisting fashion where we show his testimony in the dog hearing but more importantly that's going to work correctly raymond actually makes a door and he discussed that that door which is an option would have satisfied a not just st choice but it would have satisfied the need for a reasonable alternative design that would reduce the risk and he talks about how that door when used in the marketplace has successfully protected people from the kind of injury suffered here but that have different same considerations does does the expert have to design a forklift that you know has a permanent door which may or may make it unsafe and other applications as i understand understand the record is that is that is that a fact question or order that is absolutely if i question what mr barry said is that doors are better in the general picture they make the forklift overall safer the defendant says doors make the forklift overall less like it would be for the jury to decide which is which now the but what i'm concerned about judge t we've gone down a rabbit hole that was at the rabbit hole the trial judge went down instead the district court when it decided that we had to choose one door simply stopped the process analysis if you don't do the dollar analysis correctly that's an error of law that demands a reversal so we know that and i don't think there's any question i can skip this part if there's if the court agrees with me but it is simply not the law in utah or in any jurisdiction in the united states that requires an alternative design that a plaintiff choose one and only choice but to go to let me ask  you could i could not lose this appeal because if indeed the law allows multiple doors multiple options multiple alternative designs then what we would find from the record in this case is that the judge didn't apply the law correctly we know this was the st let me answer the question to tell you why we know it's not the law we know it's not law for for cases is a body of law that incorporates the restatement the restatement talks about multiple options being multiple alternative designs we quote in our briefs excellent discussion involving toy guns that pseudo dangerous projectile the alternative designed to be a squirt gun or a ping pong ball gun or assault pellet gun the nd reason we know is that numerous cases around the country that follow the restatement that require an alternative design regularly recognized multiple designs and again we have one design of multiple iterations but some of the cases that are recognized at the united states court of appeals level as being compliant have said you couldn't have multiple designs you view that as a question of law right that is a question of law ok so the district court's analysis as to whether your expert can comply with the the requirements of dog or those are reviewed for an abus law requiring a certain conduct by the expert that was not indeed required that is an abuse of discretion as a matter of law well good look it looks to me like we have a district judge here in a lengthy hundred and fifty one page transcript making alternative findings such as when he says instead barry has identified multiple supposed alternative designs but is not clearly committed to any of them meet but then he says and in any event he has not done the requisite analysis and testing required for any proposed alternative design that would render his proffered expert opinion admissible  very suggestion of a door fall short in my judgment of providing a scientifically reliable reliably engineered design alternative particularly when considering the complexity of the subject forklift machine bury a binds on he has not in my judgment undertaken the expert engineering work and he goes on to make several or five or six statements like this in the transcript and that suggests more says that fact alone i think it's fair that we trust the court that on that fact alone the failure to do what the court thought was required by you to law that is the reason he was excluded ok we're going to let me just when you have little bit on that  then he also says i find for all those reasons that barry does not offer a scientifically reliable expert opinion and propose safer alternative design for rayman model four thousand two hundred forklift and for those reasons that opinion has exploded so i mean he's there's a parent conflict with an opinion sometimes he says it has to do with his scientific analysis and sometimes he says it has to do with the fact that he's not committed to a design the overall import of the overall reading that you see over and over and over when you read things that what you just quoted me judge if you read the two paragraphs before the frustration continually is his belief that mr barry and the plaintiffs refuse if you've been in the hearings he was angry at me because i insisted that was not the law that is if used throughout additionally your honor we but i also would point out that if indeed your honor he somehow just talked about over and over and over the need to comply with this incorrect utah  then what we would find is that what he did is simply an abuse of discretion mr barry's rule twenty six dollars report and his dog her testimony are models of what an expert can do and should do under seven hundred and two he provided expertise for himself he provided proof of the performance of the alternative design in the real world not hypothetical often we will see someone who says i've got a better design it's not been used yet but it better he said i've got a better design this company has used it this company when it uses it it works to protect people from this exact same kind of injury that's the science machine was it well i can get that for you and mr barry has it listed all of the science he relied on is listed all of the studies he relied on are listed his personal tasks are described so if the court judgment of the trial court should be affirmed i had intended to start by discussing this issue that doesn't exist in judge shelby's chief judge shelby's decision which is that there is this  appellant proposes that judge shelby committed an error of law by holding that mr barry should be precluded from testifying because mr barry offered more than one safer alternative design the trial of proposed alternative designs it was the lack of intellectual and engineering rigor put forward regarding those potential say a core of quote safer alternative designs one other want to agree that at the in his opinion i know that calls for a yes or no your honor and i want to say i don't know and the reason why i say i don't know is because we reject the premise of the statement provided by the appellants here we don't think that's what happened i mean the seven i mean it was really clear in his and his ruling in a number of places that that's what he said now well i think your honor what he said was that the plaintiffs the plaintiffs expert punitive expert mr barry didn't do the work for any of these designs and to get to the jury he would have to do what's required under divert and kumo tire for it least one of these designs he never said you can't that you can't plead alternative theories no your honor that isn't that's not my understanding and i don't believe that's what john shelby was saying i think doug shelby was saying that if you have more than one proposed alternative design you still have to do the engineering work design we're testing and that's why for example and judge shelby discuss this in the cross examination of mr barry he admitted during cross examination that there are steps in the engineering process and except for the concept he did not apply those steps prototyping field testing with regard to any of these proposed undergraduate degrees in philosophy so if you play out the logic judge show be either made this error or he didn't make the air if he didn't make the error then we look at his analysis under abuse of discretion which i'm going to talk about in a minute  and there's no way anyone could appropriately find that judge shelby didn't properly exercised his discretion he did not abuse his discretion so the other half of the of the logic stream let's say he committed this era of law that he focused too much on you can only you have to have one design or you can can't have more than one design all that means there is an instruction to ok now consider all the other designs all five or six that mr warschauer wants considered we end up with the same place and that gets back to what judge carson was reading from the record another place that nine hundred and nineteen of  each would have prevented peterson specific injury but merely stating he has considered various designs and how they might have guarded against peterson specific type of collision hazard falls far short of any engineering rigor among other things barry fails to say how he considers them fails to identify any scientific or technical analysis he applied to each read any of them and offers no scientific support for his naked conclusion that each or any of them is safer than the raymond design with regard to the so we end up with the same place with regard to the issue of the abuse of discretion judge shelby did not this court's jurisprudence is quite clear under an abuse of discretion  well because before you can because under the dougherty analysis judge shelby the trial judge has to be the gate keeper for whether the proposed expert has come up with a safer to play a safer alternative design and it's not just a matter of feasible in the law doesn't say a feasible alternative design it's safer what's in the record is that the door that  supply house lumber yard and it's intended for those very specific environments of use it is not intended to keep people in it is intended to keep things out i believe in the record we stablish that very few of the those are are are sold and so the testing isn't doesn't fit ion and and how does that work what's what's the test team that mr barry should have well he should have and this comes right out of the decision as well he should have st and foremost taken a model four thousand two hundred and it we set out fitted it with his or many birds whatever his versions of the design are put it out in the field to get some feedback from users to see how it is used what's in the record your honour's is that putting this door and this is it makes the truck much more and discarded there are other cases where experts have been precluded from testifying and the fact of matter is the trial court judge here who's tasked with reviewing this evidence for admiss ibility under an abuse of discretion standard found that the the work by mr berry did not meet the requirements of rule seven o two and dr and as i was saying earlier if you look district court's ruling unless it is arbitrary capricious whimsical or manifestly unreliable or when we are convinced that the district court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances setting shelby review thousands of pages of briefing attachments he held an impersonal oral argument he then held a garber hearing with mr berry on the stand any loud mr warschauer and mr berry all the time they needed to present his opinions and methodology in fact and this is in the in the briefing i was not even permitted to offer evidentiary objections to many of the items to which mr berry was referring which which were numerous analysis and the basis for his decision with detailed references to the record of the law he could not have done so without having carefully reviewed the extensive record before him you're out in the arse in the past couple of decades since dr it was decided i've been a part of many darker process sees never won this thorough and extensive judged shelby told the parties early on when he took the case over before our st trial date before any of these motions have been have been filed that he saw his job as being a servant to the parties and that's what he did here i guess someone one or all of you might want to disagree with judge shelby's ultimate decision but there's no way he abused his discretion and as i mentioned earlier your role here is to determine whether judge shelby abused his discretion he did not many of role of the th circuit or any appellate court in the circumstance your honor the trial court's judgment should be affirmed misters mr peterson's appeal should be dismissed and unless you have any additional questions i appreciate your time this morning and counsel will take back the time and if you can give  you judge let me point out a couple of things quickly in the hernandez case the trial judge in mid every single one of the opinions offered by mr barrett so if we're going to use that as guidance let's use the right ruling which the trial exercise of attempting to evaluate the support for doors barry has identified where the court cannot discern that he is committed to any one of them the fact of the matter is it just stop doing the work after it became so frustrated because of an error of law and that is why we are here today an error of law that poisoned everything thank you we appreciate your arguments or your