i'll try to remind you of it you should watch your clock and newt really try to manage your time however if you fail to do that and you'll get at least two minutes extra for me thank you very much your honor you know i'm going to go i've i believe the chorus aware of those the diversity case and it focuses on insufficiently tightened sprinkler head in a pi the manufacture of a sprinkler head and nd the sprinkler head wasn't connection never met the governing standards established by the american standards american national standards institute how we know  regulates contractors in arizona reaches the same conclusion rd of all there it's in the contract between agent and macy's that they are going to meet all manufacturers specifications as to the other issue which is the american national standards institute standards the arizona as a matter of common law again requires all contractors to me industry here is a punk inactions it's pipe it is material deterioration and connections that's what we're talking about that's what crossing is an expert about this is a standard for connecting pi is the same standard that's used for connecting it might have you do it yourself or doing it your garage if you're putting it to school if you're putting in a ship or you're putting him in a office telling the same standards general contractors and two hundred different fire insulation contractors and none of them do what you think should have been done none of them out and we then conclude that the standard in the industry is what you suggested would be and if we conclude that then what makes those standards a portable to those one hundred companies that you know really don't combine with it is a matter of their general practice well as a matter of fact they do that's what  the association which signed on to that's the standard in the industry not only does the fire industry accept scribed that the army the navy and for every manufacturing outfit every manufacturing association has subscribed to that standard it's the same thing is as for example wal clubs when you look at a wall of blood they're all exactly the same size size and shape they may be manufactured by different people different materials and so on but there are standards as to how those things are to be attached and in the american national standards institute promulgating of this order you see all of the various groups that have signed on to this this isn't just somebody coming out with a standard there are something i want to say and i'm making this off the top of my head has approximately forty or fifty organizations including the fire alarm and sprinkler industry who signed on to this is the standard in the tr states all of these fire sprinkler companies belong to that because that's the one that sets the standards for them if i don't believe we submitted as part of the records because everybody agreed including the expert for them here and the expert or commonality the sub contractor agree that the standard was seven dollars churns and that was set by the standard they're all familiar with it and in fact if you give me a sack and i have the admission of the agent am ex for who indicates that that is the standard for male male fittings into female fittings on pipes and for every other type of e answers yes to the following and he says and i'm quoting from the deposition b one point two point one governs all types of and actions involving a male and female threaded connection whether the sprinkler heads or pike nipples have no holes as the section that the sprinkler head is is hooked into so that we did not argue that that standard was political in the industry it is the standard in the industry as the standard for every construction job out there in the world that has one inch pipes that requires the seven point six turns ask about how how does that had no we had no choice about that and the and the negligence claim was ill but i mean that doesn't that undermine your argument because if this duchy were patients run on that breach of contract then really what you're trying to be was gra your answer to the last question well have a question for ok well i think i relatively concluded that we have in a negligence claim the negligence claim is based on a breach of duty that he in turn implements a standard of care that is supposed to be followed when you when you comply with that duty in arizona as pointed out in our brief court decision which is almost identical to the problem we have here where there was a contract entered into to build a warehouse full of arms the contract has as one of its terms that the job was to be workman like the barn fell down the farmer then sued the contractor on the basis that the building was not constructed to workman like standards and the court indicated that no that was a basis for a negligence action or negligence actually was valid that's the basis on which it the arizona supreme court used to to to state its  holding in rawlings i hope that answers the question and judge ruled you have a filing a do and just want to make sure i understand the procedures here  understanding was that this case did not go to trial and there was a summary judgment that is absolutely my other understanding is that your because it usually wasn't an expert issues relevant here no i that i i i i understand what the court is saying and there is some confusion here the district court  the position that even if cross and was an expert on metallurgical failure structural failures pipes and so on that was irrelevant because he was not also an expert on general contracting practices there are no general contracting practices in dispute in this case that's not something that was alleged in the complaint it's not been argued and there knows the story's been taken a general contracting practices are not involved  what is involved is the standard that applies to every connection whether it's made on board ship nuclear reactor or in a warehouse across and has done hundreds of these examinations thousands of have been allowed to testify on the the standard of care for the system and whether was meant and that therefore there should have been a trial  connections with since general contracting practices are not in issue here that's irrelevant if it turns out to be that this court concludes that we have to have somebody testify about general contracting that practices so that was never raised in the complaint was never alleged there was no motion to dismiss filed on the basis that we had not talked about general contracting practices in our position is that again with the the judge the judgment should be reversed and we should have time to get an expert on general contracting practices if that's to be an issue in this proceeding file and then to complain including that issue no we did not your honor but under under this circuit's authority we don't have to do that unless the truck unless the trial court concludes and i can give you the case lopez versus smith two hundred and three fact though those were both to a band after summary judgment already being granted no those are the other way around your honor it was those in those cases the court  granted judgment and the end of it this circuit reversed on the basis that the district court had failed to offer the opportunity to counsel to amend the complaint but i mean below it was after summary judgment is where you go to to look to the standards what sort of standards you find the st question what is the standard of care here we're talking about the construction industry this is a claim against a licensed professional who is in the business of doing construction whether you view it as a case against him in the st instance or a c m vicariously through come you now the issue is what are the standards of care and and who's qualified to talk about that that is the standard that governs over the and see standard he has he has new standards that are talked about how is that not the standard in the industry that the manufacturer's instructions yeah well i  i don't st of all because i think you need someone who can say that's the standard that you need to follow and then i would follow that up judge nelson with even if you assume that ok the manufacturer's instructions are the standard there has been no no evidence whatsoever that that manufacturing standard was not met and and less your evidence is that it leaked so therefore it's not and i don't think that's evidence without something to show that it wasn't within the standards we're talking about seven or eight years actually in the construction industry coming out as a member of that certainly or at least arguably i haven't seen anything from mr comey now saying that but i have seen indications that he might be however that that is not and what mr strobel talked about in his deposition testimony was that when a manufacturer gives you instructions on how to do something they take into account those manufacturing standards such as the  new standards and so as a result we need to look to something other than the absolute standards there are there needs to be evidence mr elder wants to call this industry though the pipe in the pipe connection industry that is not who the claims are against in this case your honor the claims are in this case are against my client who is a licensed general contractor in the state of arizona and the industry that we're talking about is the construction industry and as we've talked about already industries travel excuse me mr cross and admitted that he's not experienced in that you know certainly he's a medical oh no merger glooms you know with some qualifications to talk about causation or structural failures but that does not make him all i had to talk about the end of care that applies to a general contractor or a fire sprinkler contractor who's licensed in the state of arizona standards may or may not apply and you who's actually in that industry who can address what those standards are and whether the n c as as new standards apply in this case was was there evidence in the record that that assuming we were to so the nd issue we need to get to you is if those standards apply what are the standards and who who dictates what those standards are and and as i've talked about already is our position that is a license general contractor or a sprinkler construction installer who is licensed and knows that industry who needs to address those mr mr adler talked a little bit about administrative regulations and there is in the contract there is the working life standard you have to do the work you know work in like manner standard that that is the standard the arizona courts have adopted but the issue that we have here is that standard has absolutely no meaning without someone who can talk to us about what that means in the construction industry what is the workman like manner and this is this is not generally the n c as new standard is not a generally applicable standard that if you were i were in our home and we were installing a sprinkler and we didn't do it we would therefore be negligent which is what mr al are seems to be arguing you need to have someone who actually is in the construction industry who can talk about that standard because what we're talking about is the work of a licensed professional it's not as if this is a car accident case where we're in need later will be able to understand what the issues are and whether or not somebody acted properly this is one that needs a qualified expert and mr president may be qualified in many areas but he's not qualified by his own admission to address those specific areas what about m opportunity to amend complaints have long since expired we were done with discovery by the courts order or not allowed any additional time for discovery and the case was ready to go to trial i don't think there is anything in those cases that says now after the fact after discovery has ended procedurally ended and the only step left is the submission of dispositive motions and any motions related to the actual trial vicarious liability in the economic laws doctrine on appeal even though the district where did not address that or should we remain on that for the history or to review those in the st instance it's a very nelson and i and i think because the district court did not ever really address it probably if you reach that the better instance would be to remain and to the district court for them to consider that specific issue it but i don't think we need to get there and the reason is because there has been no evidence that either the united states or what i understand your view that and i think that's what the district court sad and that's why so but yes i do agree very clearly talks about the need and and multiple arizona cases which are cited in our brief act about the need for someone who is actually qualified in that industry it is not a new issue it's not something that was hidden or  is all over arizona law and when you are bringing a claim against a licensed professional who is acting in the course and scope of that professional license you need somebody who is qualified and it is a little different in this context of a medical doctor you need a specialist in this context i think you could have any contractor whether it was a general contractor or of fire sprinkler contractor somebody who has the knowledge about the construction industry and can talk about what are the what is the standard of care in the construction industry because that is what is at issue is not the pipe fitting industry it is the construction industry and the installation of fire sprinklers i license contractor if we're talking about the other standard manufacturing standard i've talked a little bit about the lack of any evidence that that standard was not complied with the other standard the working life standard comes from a multitude of cases but that case i guess it's my turn to deal with the rebottle and to deal with a few separate discrete items here in terms of whether this particular fitting not the standards we have in the appendix i don't know if this shows up are can show up on the screen there but you see what the head look like the sprinkler head looks like the sprinkler head only have four turns there were never seven six turns on here this is page three ninety three of the exe excerpts of record and you can see how the head fits into the pipe fitting on three hundred and ninety seven and what it is manufacturer standards and there is the hansie standard the manufacturer standard required there to be at least a minimum of twenty four dollars pounds of pressure and a maximum of thirty that i have with me the kind of wrench that was used in that and this is the wrench that all of the defense experts look at the question to me that's important to me is what was there evidence that it was not between twenty and thirty four pounds of pressure they could not have leaked under typo's standards if it leaked by hypothesis it had to have not met that standard in order to  deposition to all of the defense experts does not have a torque measurement on it every one of the defense experts and we have it in the briefs i can quote that if the court would desire me to do so every one of the defense experts said with this kind of a rank you can't test what the torque is nobody knows what the torque is on this type of a wrench because there is no no feature like a torque wrench therefore you can't prove your case because you have no idea whether it was under twenty or thirty we do have the inference that a an expert like mr krause you can say it had could not have been because it leaked and we also have the answer in court where the a n c standard requires seven point six turns and from that those two photographs i just mentioned a moment ago one of which i showed shows that the it was only turned four times in other words it was turned in by hand and nobody when shit the n c standard is somewhat different because that's a visual scene so your man can turn this thing around and you can see that he's done it seven point six times that never happened here and what we're talking about is the pipe connection there is nothing that i of and none of the experts and there's no evidence in the record that says the construction industry anymore than the nuclear power industry in the ship a ship or building any ship building any other industry is exempt from the standard a one inch pipe and each one of these engineers testified to asked to be turned under the n c standard seven dollars times if you're using a typo sprinkler head as the go between the twenty and thirty pounds of torque so it is it's kind of fundamental there is there there is no exception for the construction industry and we turn to the status experts here and when we're talking about medical experts under th circuit  case law the experts do not have to have the exact subspecialty that we're talking about you have a surgeon can testify about heart surgery even if he is not a specialist in heart surgery  in terms of the brief we cited those cases were definitely aware of the briefing but i think your time is over beyond the time extend your honor i appreciate the courtesy of giving me the extension of time i try to answer the questions as best i could and if i've spent too much time i apologize for that you know you didn't spend too much time and you know we kept you busy with questions but i have a final question for both of the excellent advocates here and that question has i wanted to know if if you to come up with the right answer you know that was not what the tentative ruling was about the tentative ruling was about the legal standard as to whether the standard of care could be added furred from the terms of a contract they there was no discussion that i recall i may be incorrect but i there's no discussion that i recall about whether we should be retaining another expert on the construction matter of knowing that a construction expert would be necessary as i pointed out to the circuit our opening brief if that turns out to be what that what this court finds is necessary in these types of cases we're perfectly happy to go out and get an expert we didn't realise that that was going to be necessary because the case law to us appears clearly to the contrary thank you counsel i think i mean just make notice they could consider mediation i don't want you to respond either of you now to that but if we did i want you to know that that type of notice