misspeaks was riding in was traveling as slow as twenty five mph and the target vehicle that hit or was traveling as low as eight miles an hour now as a result of this city intersection accident misspeaks almost died she had life threatening injuries and by the time of trial her medical bills were five hundred thousand dollars and everyone agrees that these life threatening injuries were caused by her seek help now she claimed that the seat belt was effectively designed and it was a substantial factory causing her of or her shoulder is designed and that is what caused plenty to see injuries now clearly and i don't know how anyone can argue whether otherwise this is in effect a misuse  me just say right off what bothers me about this case is that there's a dearth of law in montana about strict liability cases for instance under montana's strict liability law does that and so our question is you've got an issue of montana law we could decide it presumably but normally we like the city courts to decide state law issues already my colleague has raised the point that i would echo about her before coming here and i understand that i'm sorry you were but let me just say that that was the first part of my answer to justice no since question your brief in that case they make the misuse claim right the plaintiff makes the claim kinser the trial judge says misuse does not apply was a matter of law  client your client has said i know consistently as i understand it i did not misuse that seatbelt ironically the evidence of misuse comes in from mazda's expert the jury certainly heard a lot of testimony about misuse admit to misusing right to getting the stuff on our fingers it's just it's your argument but if you want to explain to me do you think that it doesn't matter i certainly am convinced the jury heard evidence that your client in fact did misuse the and when you read cancer and this is from paragraph thirty three of the opinion of discretion as well and so when it comes to the issue foreseeability the montel supreme court said in answer one of the reasons they reverse is because the jury was not fully instructed that it was foreseeable to the defense in this case that that might happen there were a couple of different mistakes made in  the strongest argument is to structural errors what did the court tell him so we must not to look at forty seven forty eight or which instruction to look at our instructions not forty seven forty eight but i would say forty five and forty six ok and a n beginning with the the first court's instruction you know well this is the instruction you saw these are instructions we saw but remember first of all this is this is a instructional error argument is it that you think you should have been given number forty five but that the judge was wrong to to not give your number forty five that's our strongest argument is not necessarily  the denial of any one instruction our strongest argument is that he had to fully and fairly instruct the law on misuse and he didn't give any instruction at all on issues that so they're going to get up and they're going to say the reason that there wasn't a misuse instruction is because you've got the party travelling but you've got right so do you want an opportunity to respond to that now  i'm not could you repeat the question your honor i want to make sure you ask the court to rule pretrial that your client's misuse if if music was was was forseeable and i think the judge ruled in fact they did maza did first see said you better take a look at cancer here's our pretrial order this is where we're going to have big problems in this trial and you want it instruction forty five yeah and forty five per it's what he said instruction that discusses both misuse and negligence and effectively argues judge you're telling a jury too much you're telling so he ends up just saying because this is what we call a strict product liability case negligence of your party isn't relevant disbelieves it at that and then he compounds air by when he was afraid of telling them too much about misuse he goes on to give a mere happening accidental instruction which had been condemned by the montana supreme of course he says over things that you want to talk about there in your proposed instruction number forty five stay away from you can't cross examine about it you can't argue what you can't your brief the court concluded quote for c ability i think he meant in context of the seatbelt misuse but anyway for see ability is out of this case right how many times did he instruct the jury that they should not consider misuse of the seat he didn't use the word misuse at all did he talk about i think that's right routing the seat belt was that was it was the jury is what i'm trying to really ask was the jury told repeatedly not to consider the way the seatbelt was routed you know he didn't say anything about not to consider the way the seat belt was route so he could see them on their defense so he just limited his instructions to quote unquote foreseeability without explaining prosy ability of what he didn't talk about percy bill would be and all he wanted to see though he didn't come in the case the only thing he instructed the jury may please the court counsel michael carey when he lumet and run bender on behalf of applebee's the monster defendants there are three reasons to affirm the lower court's judgment oz's causation defense was proper under ball vs clock maza never overstepped the boundaries of that ruling and the court was well within its discretion in fashioning the language of its limiting instruction the one that your honor just read finally plaintiff's mischaracterization of mazas causation defense does not justify introduction of instructions and evidence on misuse or c ability counsel can you point to me any montana law  under strict products liability of law and if a manifest here expects a reasonably for seeds that is product is or will be used in any certain fashion does the manifest her ha a duty to design out or guard against the fix as so seated with law yes you are that there's a long line of cases in montana what is the case that you're referring starts with newville plum and then we get into lutes versus national crane and kenzer and all those cases do stand for that proposition but that's not at issue in this case and that gets to the point of this is not an issue in this case that's correct your honor and the reason for that is misuse and foreseeability never found their way into this case this case was premised on the claim that the plaintiff was wearing the seat belt over her shoulder as it was designed well your experts your and your the defense argued and the jury certainly heard evidence that your theory was that she didn't misuse the c no your honor our evidence was that the seatbelt fit did not cause the injury now yes the facts of what actually caused her injury and the facts of what somebody might characterize as misuse are the same facts but that's inherent in the nature and so it really feels like they're not answering my question and being candid and i'll go through the record again but my clerk and i have come through it so i'm just trying to get at whether or not your expert introduced evidence or perhaps fact witnesses instead it introduced evidence about the rosing and so forth from the seat belts to suggest to the jury that the belt misrouted am i wrong about that no not at all your honor you're not wrong at all and what it comes down to is a characterization of that evidence and what the district court or the trial court permitted under bell vs glaucus for mazda to negate causation we had be very careful not to say miss route or misuse or anything that would characterize plaintiff's conduct and bring in her negligence the case because that's not permitted under mostel under montana law right is not permitted under montana law and i and i seems really fair game of course from a civic to run hard at the cause ation element of course my concern is that man in evidently that the jury heard this evidence and that was fair game for them to to hear it but where is the instruction that tells them what to do with it it's the instruction your honor read and it's a limiting instruction it was properly formulated by the lower court and basically what it said is you can consider this evidence of how the seatbelt was routed only for the limited purpose of determining whether a fit defect in the seatbelt cause an injury and for no other purpose specifically going further the court said negligence of either party is not at issue in this case and that's exactly right and that's well within his especially negligence of course really as a term of art and there's a bunch of different elements packed in there and you and i use that term all the time but i'm concerned about communicating to the jury what they were supposed to do with that right and the court was pretty careful in its dress this at least six different times throughout the trial with argument from counsel on both sides each time and ultimately it made this determination about what that limiting instruction was going to be and didn't go further in the reason it didn't go further in formulating in additional instructions the type of instructions that were planned plaintiff was asking for is it because it felt and i'm quoting the record it fifty four there was a risk of seeing too much that it would draw too much focus to the concepts and negligence and misuse and that it might conflate two liability to conflate the liability defense negligence in misuse which are not available in this case with the defendant's causation defense well what about i appreciate that and i've looked long and hard at that and i and i know this judge was this is a tough position for this track court judges thank you for trying to thread a needle dick opposing counsel argues that the proffered instruction forty five i think parrots the pretrial ruling parrots the preacher ruling and i think it is an uncontested statement about what misuse means in montana law what would have been the problem with giving them that i think you can do it in one sentence the problem with giving them that is exactly what i just articulated the court was can concerned you'd have the sort of confusion that arose in cannes or where the dirty jury didn't know what to do with misuse or forseeable that that i've got the same concern here they heard the evidence because well within its rights introduced the evidence and so where was the jury supposed to look it to say that it's out of the case isn't very helpful it's in the evidence and that's very on what the jury was supposed to do is follow the court's living instruction that's all the jury could do and that's all the trial court could give in this instance because the case wasn't predicated on a foreseeable misuse causing the injury it was predicated on it being used as designed and so with that if you have evidence that negates that as bell versus glock states you have two competing tenets of law here you have the newville plumb and loose line of cases and then you have our kind of case which is as i said predicated on used as designed so and by understand you correctly then you're saying that the plaintiff never pled misuse or foreseeability you all brought that in but the judge had to carefully limit how the jury used that so as to avoid the very problems that  trying to avoid and you think that instruction forty five did that no harm no foul the instruction forty five wasn't given is proposed because that contains some additional concepts today or it was reluctant to give what the court finally gave his instruction t two which was read by judge christian is the actual instruction and it covers the concepts that need to be covered given the competing tenants of law here and in a case like this where as your honor pointed out plaintiffs not only didn't plead foreseeability there was nothing in the court's introduction the plaintiffs opening statement contain nothing about this alternative theory that you read about in their brief there was nothing in plain case in chief about even if she had had it under arm there was no cross attempted actually attempted or suggested or proffered of any of mazas witnesses there wasn't on that point i think he told him not to write an complimented both of you for staying in bounds no no the only time that and then the quote that counsel stated up here the podium a few minutes ago where they were told to stay away from forsee ability was just prior to closing arguments and it would have but he said i thank you both for i read this earlier in the transcript he said i want to thank you both for sort of steering clear of us that he had made a prepared willing any thank you both and i think really compliment both of you for or abiding by it is that not a fair characterization and that's right in abiding by it meant not using terms like miss route or improper or negligence or anything that would suggest or blame plaintiff for having put the seatbelt on under her arm and that's what did complement the facts of this case as opposed to the general rule of montana law i gather it's miles this position that given these facts there's no new law needed from the montana supreme court or that the law that is there is adequate that's great when you look at what the what the players didn't present the limited way in which the evidence that you suggested was use the laws  for the law is clear i mean what we're really talking about is the prime official element of causation and that's not disputed in montana a plaintiff has to prove that and if the facts disprove that in those facts or elicited by to defend it in the case then that's something that's fair game we don't get in follow up on this question we all agree that montana law should apply had my last post and i spent a lot of time looking at montana law and we looked at cases like butts and yes your honor and not only did they not plead it but it was never presented in any fashion during the case and not because the court prohibited him from doing so it was never proffered it was never suggested what counsel has argued for is that as an alternative theory they wanted to be able to argue in their closing based on these jury instructions that they've requested that well even if you find that our client was wearing a seatbelt under her arm we should still be able to recover assuming that because of the injury the resulting injury and the fact that there was this duty as the court just noted that that would mean liability but we didn't have any evidence we didn't have any testimony that for example mazda failed to design our guard against this or warn against it or anything like that just as the lower court said was not presented in this case they tried the case on the theory that the seat belt as worn over the shoulder was defective inherent in a seatbelt fit defect claim is the concept that it is worn over the shoulder and so as soon as you take that away by showing facts that disprove that compelling unrebutted facts you disrupt the causation and that's what the lower court allowed maza to do consistent with bell versus glock and that's what the limiting instruction at the lower court fashion was appropriate in limiting the jurors per view of viewing that evidence for it didn't want to go any further into these other concepts because it didn't want to have the same sort of problem that was faced in cans or in cans or you have a situation where similar to this they excluded the misuse defense and then despite that exclusion the defendant were allowed to put in industry reports the cia or reports to talk about nail polish being ok if it's just on the fingernails well that was contrary to the lower court's ruling and so this evidence got in there and then compound ing that you had a situation where the defendant or the plaintiff was not allowed to cross examine and seize witnesses that's the defendant about the foreseeability of getting nail polish on your skin or inhaling it and then after those two errors the court could have corrected it with a jury instruction that would instructed the jury ok you've heard evidence about this misuse from the defendant but they have a duty to guard out and design against it with that compound ing confluence of errors which is the turn that the court used they found that it needed to be reversed because you had all this confusion for the jury and it didn't fit the facts of the case presented on what the misused defense was the premise of the claim is that it was being used as designed unlike in cancer and if you demonstrate factually that it was not used in a way that was consistent with its design and that's in fact what caused the injury without blaming or signing fault anybody that's permitted under montana law and that's the limiting instruction at the lower court gave to the jury and when we talk about the court's instructions we're talking about abuse of distress discretion the lower court was there it had the vantage point of hearing all the evidence of seeing the jury react to the witnesses and understanding where they were at and understood what was going on with the case and in its discretion determine that this sort of living instruction was appropriate so  not to confuse the jurors counsel i'm going to read a little bit blurb here too because i want to give you a chance to respond this is from the transcript and the plaintiff's counsel said the court clearly instructed the plaintiff not to get into issues of first the ability and i think we abided by what the court told us on the point on that point we did not get into question whether it was forseeable to the manufacturer that a plaintiff would put the arm under the belt the questions that we got into with the witness during the deposition and the judge responded i appreciate the fact that the plaintiffs didn't in cross examination get into that subject because that was my request that you not do so and you've been steadfast in avoiding that subject of two questions is it your recollection that this is the statement that happened just before closing that one happened previously there's another one right before closing ok and thank you and when he says  steadfast in avoiding that was my request he says is he referring to the request that he made pretrial and if so how much before the trial before trial the summary judgment order was issued in june and then we had a pretrial brief