minute please the court my name is joe regan or e g a and i'm from rochester and i represent kim greenberg this is a products liability case involving issues of product defect as well as product warning very briefly mr greenberg was working at the xerox corporation up in rochester and was with the crew that was attempting to change out something called a cloth filter in this very large iraq's pressure filter machine it's a device that would probably fill about a quarter of this room it's about twenty five feet high twenty five feet long ten feet wide as he was performing that act and following the instructions set forth in the lorax manual for this very process he was operating at a hand crank that was intended to reel up this filter cloth in the cloth fairly early on in the process the cloth suddenly reversed itself reversing the handle and throwing him into a screening post of the machine and he was seriously injured the defect that we've described is a propensity on the part of this cloth it's coming out of the machine that pinch on itself in essence you have a stream of clogged going in two different directions at the same time it's going up and over a power a very strong hydraulically operated more and then the cloth coming down and at times depending on whether the slack is not fully taken out that cloth will pull back up and get caught and and has enough power to actually damage and destroyed parts of the machine that defect was known by law rocks and in fact when they set up this cloth recovery system including this crank that the plaintiff was operating they put in a seven statement which they say constitutes a warning it's not in larger print but it is in boulder print in the accompanying a print in the manual all the cloth must keep tight one wheeling seven words even if it is to warn even if except that there was a design defect did the plaintiff offer an alternative safer design with respect to the crank which was part of the set up as manual isn't it well said that we couldn't we could make one for you if you want and what they make is exactly what they had or you can go ahead and make it yourself but this is a perfectly adequate device to use to crank up this material xerox had no interest in making this sort of thing is that in that business what they wanted to do was recapture these filters for use it in at various times when they were changing out the colors of the toner that they were they were using it to make just the record show whether the rocks by any of its other customers in the making of this kind of attachment device or was this manual for changing out this cough other than the one that was being followed by my client in the xerox man you know what the description of oh by the way if you want to you can just let this accumulate on the floor there was testimony from the case where goodyear knew there was a defective tire women assembly that some people were using with its tires it knew it but there were other customers that were using a different assembly that was fine in the court of appeals  happening happening to utilize this crank but iraq said this is what you use if you're going to be captured this material we're going to do this in a different way we're going to hire twenty years your employees do this by hand we're to run him in shifts and everyone is just going to stand there pulling out the clock and feeding him new clocks in this one didn't happen right of course they could have caught up with a machete they could have set fire to it there are a thousand wage of can get that cloth out of there but why would you not follow the instructions of the manufacturer and the manufacturer says by the way utilize a crank device and the lorax representatives were present at the time this machine was set up you don't buy this off the shelf they were there for weeks and  months setting this thing up and making sure i'm a shakedown that everything was operating properly the testimony was that iraq's people were there watching this crank being used as the filter was being changed out but my understanding is that even if we were to find that your design defect argument was inadequate in that the expert failed to offer adequate alternatives that you would still  urge us to find that of the rocks was responsible in that it failed to warn of the latent aspect of the machines operation that created this danger and that your case is substantiated by in new york city get to that please yeah i believe that is a that necessarily just a tweak but a significant modification of the holding a mistake in in the most recent court of appeals case crane company which designs high pressure piece the crane manufactured piece had to be used with the best as every customer that every customer of the rocks machine have to use it with a device that xerox used it with every customer name xerox had to because that's what they told  but that's a lot different than a new york city's best is right but lawrence was aware of the problem and in on this fact i agree with you but it's different to have a duty to warn that relates to one specific customer in the new york city as best as cases where they knew that every customer had that same problem and i don't see that in your record every customer with a with a low rocks machine has this inherent defect in it because the cloth will tend to catch on itself that's developed by low rocks now there might be some people that decide that they're going to pull it out but isn't it significant potentially that little rocks are offered this design which your customer which is iraq's sold because they made them these very racks to other people they were free wheeling racks exactly of the type that were used by xerox how many i don't know but i would say they had  built according to that design that xerox used in that resulted in this or that right they saw the brother so that other customers happens to have enough capacity in facility to be able to make it themselves but other couple customers apparently didn't and that's why i offered that service this wasn't a one off offer it was similar to one they offered was exactly as described by the representative of the rocks and he said when looking at the application he said that's a very fine way to do it he had no objection to the manner in which it was being used thank you save some time for a bottle good morning at least according john friedman burg and i represent the rocks the defendant appellee very briefly on the issue of design i think the failure of the shortcoming in the plaintiff's expert and plaintiff's expert report was borne out in the questions by the court and appellants argument professor quenelle the expert made no findings about the the rocks machine the what we're talking about though hasn't little rocks affectively adapted the extension on to the machine the clock feeding an extraction device by being so heavily involved in recommending and developing what should be used with its machine that's a great question or if you look at the pages of the manual that address that there is something akin to a stick figure of the extra rock there are no specifications of the wreckage i think it's important to keep in mind that the feature characteristics of the movement of the clock caused it to move in reverse it's very important to keep that in mind because let's look at it is it true that the low rocks represented in attendant the xerox training show that's not exactly right your honor what happened is there were a xerox i'm sorry there were little rock's representatives at xerox who were there to insure that the entire machine keep in mind that this machine goes about making its toner that's that's it business that it runs ninety nine percent of the time making toner the swap out of the cloth is just one part of the process it's true that the record shows that there was a lot of the rocks representative on site during a swap out but they didn't do the kind of analysis of all of the qualities of the xerox wreck i'd like to draw an analogy annual shows this external rack and then here is the rocks person there during the training while there while they're teaching employees how to use the rack why why couldn't a jury find that iraq's iraq's was involved in it with the external longer it's it's not a jury question the existence of a duty is a question of law and if i may illustrate the kind of duty that the court would be imposing by even entertaining this we external rack had we done that we would have own the responsibility for the external rack instead xerox says we've got this will design and make and you have given no reason for xerox not to build it itself you provide the sketch you have your people there you and i have knowledge that there is a cloth piling up inside the machine and all you do is say that you have to be careful not to let slack develop the cloth is not piling up inside the machine your honor when we talk about cloth piling up that's the alternative they made allow it to pile up on the floor if they don't want to reuse it in the way that your x ray uses it but imagine the burden that would be placed the impractical burden that would be placed on the rocks if we were to buy the responsibility for all of the features sure this accident happened because of the robustness of the hand crank that was supplied by the employer xerox what about other problems were were we was it incumbent on us to ask them now wait a minute we might have a duty imposed on us down the road so you better give us four or five prototypes of this so we can take it and he recognized there was some duty was it didn't you because you provided a kind of all caps you know don't let slack develop so there is some reason if you look if you look at the the testimony of yannick had been in the finnish gentleman who was our witness he described a danger to the machine itself the machine may suffer damage in the event that there is a failure to keep the talking us during the removal there was no record there was no recognition by mr happen in or anybody else that there was ever an injury by somebody electing to hold onto it less than robust crank that happens to reverse itself during this operation but imagine if we had to take this responsibility let's let's let's say we had to find out whether the geometry of the xerox rock was such that when cloth accumulated on it it didn't tip over from imbalance or that the spindle was robust enough to hold the cloth as it accumulates those are the kinds of things that i think the courts recognize when talking about the the commonsense implication here you can't impose the responsibility the rocks for the specific features that go beyond the sketch drawing this let me all in the manual those are all electives by xerox xerox design stephen elop koski testified he sketched it out and they gave it to their contractor to build and they gave cranes phelps would not operate in the environment to which they were intended without a spouse to us especially this was both what made it functional and what made it dangerous and therefore it was that it seems to me leora did not identify adequately potentially a club according to just providing the sketch but perhaps your honor somebody if we had provided our own external rack we would have been able to specify how much robustness was required in the crank and provide the crank that would do the job you you took that risk fine akhenaten that i really don't think so your honor i think that's going that's imposing a duty on a manufacturer that runs for a field if we had made the rock ourselves we would have  responsibility we would have on the responsibility we simply don't have the responsibility here xerox said we've got it we'll make our own and thereby xerox took on the responsibility which should xerox have known about the risks of building it testified to this is in mr cabins testimony as well there is no history of anyone ever beat being injured previously by a crank reversing hand crank reversing on one of these external racks and you ask the question what should the rights of known was iraq's has made previous racks for other twenty machines in fact mr mallock was given and testify to that position testified that the reason he took on the responsibility to do it in this instance is because he had done it before he had made one before for at least one machine possibly two and therefore he knew what it was suitable for that work environment and he sketched one that was suitable for this and he gave it to their contractor the contractor built doesn't doesn't these best to scase at least raise enough questions about who should have known what duties were owed that how to make this injury case not a summary judgment case not your honor and again i have to respectfully reinforce that it's a it is a duty case it's it's the court's duty it's the court's job to recognize whether a legal duty excess but if there are if there are factual disputes  t affect the determination on duty who decides those factual i don't think we're dealing with factual disputes simming there are some if there were that would be a jury question but there are not factual dis some disagreement over whether the lorax representative at the at the training was involved to want to stand there there seems to be some dispute over whether this external rack is necessary why shouldn't a jury decide those kinds of questions the one fact that's truly absent your honor is any claim that during the procedures that were witnessed by the rocks people that built by xerox behaved in a way that should have alerted the lorax people wait a minute perhaps the crank that you will acted to use and your unique rack may have a problem and we need icing the you elect part and should under the itself is not specified in the drawing the drawing is a very very rough sketch that shows the a frame of the of the external rack but it's not it doesn't specifically spec the robustness of the hand crank that was clearly the election of thank you yet your argument maker the rebuttal just quickly your honor with respect to whether or not there was recognition on the part of the lorax that something like this could happen i believe that would be an issue for the jury to determine had this powered release of the cloth all the other devices could be controlled directly by the crank so there was no question about the cloth actually being pole pulled then on those other machines we ask you this consistent with should have anticipated that there could be problems with a hand crank when they saw exactly ok