warning on the professional strength goof off can complied with the federal head of the substance dept fifteen u s c twelve sixty one that all failure to warrant claims are preempted we've never maintained otherwise on the air but what we do maintain and we did maintain in the district court is that if the morning on the can't a professional spring goof off did not act comply with fifteen warned that this was a highly flammable extremely flammable product what it doesn't do is go into how it might ignite you know whether through a pilot lie or a cigarette or a spark from all static electricity or something else short and that i'm familiar with any federal law and i agree with you that state laws allow to enforce the federal law but it can't add that i don't see any law that says that the label has to go into the next level of describe the precautionary measures to be taken or avoided that was not done here so so you're saying that they would have to identify all the possible ways that sparks are created no i think consumers or consumers against agitating goof off with a brush and that's what we think that their directions to the consumer in this case are designed according to the place of such work to create the very thing that can ignite the vapors so that i think is your strongest argument this is gonna be a design defect in in consumer expectation design defect cases the product test performs safely the way an ordinary consumer would do it using it in the intended manner and if the label itself says applied directly agitate with crush and that creates static electricity in the whole thing blows up on you then the consumers doing the intended thing in the consumers hurt that that i think is is that that is our primary hurdle in theory for that is our primary argument because not only are they not failing to what we believe and the whole thing would ignite but this and i thought your experts would also of course be maybe you need to talk about your expert but one of them was saying that given the defeat of the fumes he ruled out the pilot reap the vapors ignited and bird my client no question about that what the distinction is is that the defendant's experts say the pilot light another room behind closed doors i know you are in a hot water heater in a furnace that may or may not have been out and we don't even know who is the plate of could not recall whether he turned the matter up so we're not even sure whether they're on or off but that they ignited however he concedes that it would take at least six minutes for the fumes to get to the area based on the commuter computer modeling that they did but the testimony of the plaintiff is that he poured it on the floor started moving it in right away did it ignited plus there egret he was a little unsure about i mean of course the poor man's head and terribly traumatic experience but i thought he said i don't know it could have been one minute well there was maybe even up to five that well there was a confusion in his deposition of one because of language we had an interpreter and it was difficult he didn't have the same strain of spanish as my client apparently spoke but beyond that aspect of it was pretty clear even the district court of imploding at the record as a whole time frame actually where he was mixed up was he thought the reaction of how long he'd been doing this thing meaning going to hold people buying the can and coming back and one point he said two hours well it was a man there for two hours we know that he straightened out later and he ended up saying right away but the the rich the problem the the real significance of this product being the reason we dangerous is nobody can seize their own experts say stamped electricity you can do it through your arms the occurrence from occurring it's irrelevant that's what kind of florist testified it's in the record if it's so that warning didn't have anything to do with it because of the six minute time frame this ignited right away poured into the evidence that we have it can't have ignited right away poured into their experts and computer modeling it takes six minutes so it's inconsistent there and then their expert even admitted if it if it if if if if that wasn't on the floor for at least six to ten minutes i'd have more work to do  his theory that the pilot light ignite it ignited it would be out tell i ask you about your experts the district court and his opinion by granting the defendant's motion for summary judgment and he says terminates their motions in limine it will these motions in limine who are the ones where they were arguing that your experts should be x clue did so i'm trying to figure out how we should evaluate your experts testimony or the question of the double challenges to two of the three experts i would just point out briefly though with respect to the expert issue the fire expert they're arguing death when you were investigated when you fight fire investigator the state of illinois that in order to arrive at the origin and cause of the fire which is what they do he's done this over three thousand times this is that somebody who's been a firefighter for years he lectures on this issue he's the building down next door and sawyer see it what that's how it happened you know you can't do that and you don't want to put somebody in the situation will get in your position is fire that the people who are expert and fire analysis don't engage in reconstruction they'd rely on n f p a eight hundred seventy seven and nine twenty one that are cited in there these are peer review these are these are pretty standard this is pretty standard stuff this is used all the time in the state courts in  reprimand he says exactly the same thing there's no conflict in the record here about the ecstatic electricity can be generated in numerous ways and and n f p a seventy seven and nine twenty one firmly issue of the warning label secondary has under first the only requirement is that my client warrant the use your of the primary hazard in this case extreme plan the billing and they did that so let's assume that's all correct the thing that worries me about this label is the instruction for concrete and metal which says as you probably know ply directly spark and of course the stuff is unbelievably flammable everybody knows that and so that's that's that and so when somebody does exactly what the label told him to do loops that they did raise the label point in their response to your motion for summary judgment wasn't expansive but they they did say something that and the just record dress is it which is perhaps even more important because we don't want to sandbag the district judge but if he addresses a point i respectfully disagree with that i don't think subsection half which deals with requirements was raised at all in the district court however having said that the plaintiffs are presenting no proof even if they can get beyond the waiver problem that they're that that educating this product with  tremendous and your own label says a tremendously flammable product with a flash point at zero it's like you know you sold somebody's hair dryer and you said hop in the bath tub and start drying your hair and you know anybody who did that would wind up getting electrocuted when you told them to do something that's going to cause the spark well first of all your honor our label specifically warns against  spark can be generated by by brushing this product kirsten's involved the lacquer thinner label warnings that were substantially similar to the goof off label you read yes but that's a different product product acetone is not subject to be due to generating static electricity with being stirred under n f p a seventy seven it lists the products and if a product  list the secondary as it is to destroy core pointed out the primary hazard associated with this product is this extreme flammability we don't have to list every potential way that a product can be ignited and as a matter of fact there is not one can be generated to ignite this product there is a huge difference there and i would point out that the deposition testimony of mr miller was point of static electricity expert he was a page twenty nine of his deposition so as you sit here today you don't know whether the broom of the type being used by mr suarez was capable of generating a static electric charge which would have been sufficient to ignite goof off is that correct his answer that is correct so we have to distinguish between the mere presence of static electricity answer fission static electricity to ignite goof off the testing that was performed by their expert he said he took a broom of the type being used by mr swire else the type in the brand and everything yes the same broom yes and they brushed it on clothing and they brush out a number of different foreign objects and then he tested it with a primitive instrument merely measures the presence of static electricity not the quantity and that's important because the experts in this case plaintiff's experts have not established that sufficient static electric charge could be generated by the broom in this case to ignite goof up and his up to date in fact your experts have two conflicting theories hysterical a tricity expert tested it by rubbing out a number of are expert showed we have to have about twenty five thousand volts to ignite goof off of static electricity and the testing that we did duplicating with a did doesn't even come close and i we measure you can measure the amount of there is a fire you're not contesting that right man gets burned so how does the fire start and your experts say it's the pilot lights and their experts say no couldn't be the pilots because it happened too quickly yes it isn't like i'm not you know is that you know an act of god you know what i would like to correct the record assisted by plan he claims that the fire started on this immediately your honor pointed out that it and so points of his deposition he says that it was one to three minutes when he was brushing but it should be pointed out  initially made an application of this product on the floor to test it to see whether it would work or not it puts him on the floor and let it sit there in his testimony and that portion of the deposition he say let it sit on the floor for up to two hours well that's where your testimony this product was on the floor for some period of time and then he made a second application and the second application is what your honor was referring to earlier we talks about one to three minutes if static electricity started this fire it does not start one two or three minutes even after he begins to brush it with a broom if there was a static theoretically if a sufficient static electricity charge could be built up in a broom sufficient to ignite goof off which can't happen it's impossible but if it could that static electric charge would ignite the fire at the very microsecond before it touches the for the first time ignited that's when but it's not our burden of proof plaintiff has the burden of showing some evidence here that there was a sufficient electric charge to ignite goof off their experts don't know how much electricity could have been generated fictitious experiments they conducted by pressuring on objects which is no evidence in the record in this case they didn't know what quantity of electricity would be necessary to ignite goof off and they may know measurements to find out what quantity of electricity was presen out that under the the strict product liability claims they have to show compliance in a reasonably anticipated matter we specifically war on our can do not use this product in a basement he used it in suggesting and the reason that the argument was a little bit more and a little more teeth in it and in the appellate court before the court of appeals here is because it was never raised by the defendant and summary judgment i'm only take your expert reports an evidentiary gap about the quantity of life tricity that needs to be present before the stuff will ignite that is the peer review things that we have cited in our brief deal and it's almost impossible cording to our experts and there are two to replicate the conditions that existed exactly on that date so that you would have the exact the mine air the exact the mind of a person you know but what with this certified fire investigator