court we're dealing with a case involving a four thousand pound machine moving along at less than half an adult's walking speed lights flashing buzzer sounded and the person operating that machine has his back turned to the direction of his travel he's looking south as the machine moves north knowing the whole time there is trust somewhere right in the path of the machine we have a safety bar held together with duct tape if you can possibly believe that and testimony that everybody in the plant knew about this is a condition for months they reported it to management management said don't worry about it fogle the maintenance guy will fix it there's only one problem with that your hono so we have an employer here with a machine that was the love of phone to complete this repair and they don't have anybody in charge of maintenance now at all this up and said look what you have you end up with a lethal mixture of negligent maintenance plainly visible to anyone who bothered to look at the machine a failure to enforcing the rules designed specifically to prevent the accident that that occurred in this case a victim who knew the rules knew he was supposed to leave the restricted safety zone but decided to ignore those rules as did most of his fellow workers and finally most importantly have a machine operator who turned his back on the direction that he was moving the roof clutter knowing full well that the stump bar was in a state of disrepair not the highway know that schuyler priest was the operator he's the one that had his back turned as they moved this four thousand pound machine forward he testified that these the push bar system and that's right at the bottom port side that's where the duct tape was he said this was a visible safety issue schuyler priest said you cannot not see it so the operator the guy who knows that this machine is not it is visibly a safety hazard is the guy who turns his back and moves the machine the other way what we have here is a very dangerous piece of machinery it's very large very dangerous it's not dangerous by design it's not dangerous when it left the factory but in c m e t's hans it was extremely dangerous it was an accident waiting to happen you know how on earth you hold the manufacturer responsible under these circumstances where they claim that we should have had extra safety devices we should have had an electric eye that might have done it trouble is those electric eyes they need to be maintained as well particularly in an industrial environment who's going to maintain i guess if they fall off maybe somebody will duct tape them back up that way but this is mean if we put an actuator switch on both of the vertical pivot arms instead of one well that might on what happens with one when one of those activator switches of malfunctions does anybody fix it who's the who's the repairman here who's the one that's checking this machine to make sure that it's working fact is if appeal into a single brief and it was quite a challenge it violates every rule of health practice far as i'm concerned you're supposed to pick four issues three or ok the c five but we have we have five seven with three sub the issues in there it boggles the mind at the same time i don't know that i've ever encountered a jury trial that is so rife with the owner of the i want to get to some of these errors but before i do i want to discuss with of course the mission what i believe to be the crux of this matter the one issue that resolves this entire case that's props because ation a manufacturers have no duty to design a product that is incapable of causing injury  that's we all know that the injury must and into rival from a distinct defect in the product itself you know if that defective condition merely creates a condition by which that the intervention of the independent concurrent force will not break a causal connection if that intervention itself was foreseeable so here are the questions this court heard me the question is this must ask was it foreseeable that c i t would allow the machine to fall into such a repair this repair that it would allow safety devices to be held together with duct tape put on by the trusses somewhere some lives  at risk here was a perceivable of the operator of the roof glider would turn his back to the truss assemblers while he moved the gantry even though he knew that the stop bar was a safety issue and finally and possibly most important restricted safety zone like all of his coworkers had he decided to stay is that forseeable from the manufacturers point of view only nine hundred seventy eight this court ended down a landmark decision subsequently up held inside with approval by the only supreme court it now stands as the law you know annoying on products liability litigation well the facts in that case are nearly identical to the facts in the case  using that word too much of the present case in barbara videos you have an asphalt spreader being pushed forward by an operator who was looking the other way the injured party the plaintiff and his back turned to the asphalt spreader he struck his leg resulting in agitation now the court held this court all a manufacturer could not be expected to enter this occasion the failure of the operator to observe his path of progress how's it different than what skylar freeze in the case of bar i think it's important to point out that in barbie reveals we had one intervening cause just one we have the operator looking the wrong way as you move the asphalt spreader forward in this case we have a multitude of intervening factors we have the the fact that the accident would not have occurred if p had merely maintained its equipment it would not have happened if it inforced its city rules and should also be pointed out that in bar as i mentioned earlier the plate of his back turned to it here in this case plaintiff was facing a machine he saw coming toward the buzzer sounded the lights flash all of his coworkers did what they were supposed to do they left the tables if plaintiff had merely stepped out of the but as i understand it they were taking this asshole's better and they were laying down asphalt they were they were moving into a robot parking area to do maintenance on the operator the plaintiff's bar and gotten off the machine his back was turn it when i better my reply brief there are two separate rulings in barbie rebellious first the court held that the protection afforded by concepts of strict liability in tort do not extend to bystanders and that's that's what opposing counsel is relying and then a little bit further on the opinion the course says this is a quote and equally important reason for affirming the judgment was the absence of proximate cause i'll look at the opinion the fact that the bar was a price center is never mentioned again and why should the fact the proximate cause has nothing to do with whether a person is a bystander or a worker that's a product liability issue this is a completely separate bases for the course holding in bar review of ennius the fact that he was a bystander in bar and nothing to do with this course ultimate ruling which was  failure to establish proximate cause notably the court held that as a matter of law they have failed to establish probable cause no if you add all this up and it comes down to this this treat of those issues with the course of the mission first the trial court's refusal to answer the jury's question second the trial court's decision to instruct the jury that defense counsel had violated court orders and that they should take that into account in the assessing or single most important with witness our expert witness and third sustaining objections from closing arguments now during deliberations the jury asked the court to resolve a simple problem we had listed in our contribution claim against i see i see seven charging allegations they wrote to the judge they said that they had to prove all seven are just one and the whole he understood that the jet lay jury looking at this complex instruction might be confused but nevertheless he refused to and to answer the jury's question all he had to do was say no they don't need to prove all or all he had to say is they only need to prove one or more of the following he understood that the jury might be confused but he refused to do that and under supreme court precedent jurors are entitled to have their questions answered this was an abuse of discretion on that basis alone this british should be reversed second major trial or a court instructed the jury that of my text defense counsel had violated court orders because he controls scripts of the hero of the trial so far to his expert witness well you read the transcripts leading up to that hearing on the unlimited order and judge even  goes well we're going to deal with this pretty much on a case by case basis he goes we're going to err on the side of close of this if it's possible we have a witness who might change their testimony maybe will will deal with that later on but he granted the motion this is a standard expert witness is our most important witness in the case of course his presence was essential to presenting our case well we definitely are federal rule of evidence seven o three which the supreme court adopted thirty years ago he has every right to base his opinion on trial testimony that rule was recently caught a five four months before trial in the elena one quote of rules of evidence this was a huge error on the courts of part of from  my understanding is that they the players council bluff him into making this ruling of and the result was to severely pressure this is the testimony of our single most important witness finally a closing argument we have causes were it was failure to maintain the sculler priests not looking where he was going he said the actual it was also caused by the failure of mr stone to leave the tables a port sustained objection and told the jury you must disregard that statement so the last thing this jury heard before they went into the deliberations was dustin stone's conduct cannot be  argument to that effect is merely asked a series of rhetorical questions and it wants to focus on dust and stones and that those questions are not really an argument nor are they well grounded in the evidence is first ta struck the jury could not consider it as contributory negligence is not a defense as for going recently dangerous defect in the machine the evidence is absolutely blown is far seeds was necessary is safety part which is required by the ship and under the expert evidence is required for a point of operation gar is recognized as a foreseeable beat that is foreseeable that there will be somebody working in that area of the evidence is that people work in that area secondly they relate only to the allocation of all of it when the defendants are armed and and therefore they are utterly irrelevant what's going on here which is probably why he didn't mention the question from the jury it is a purely work even though it might not be the most elegant solution that you might craft if you had a clean sheet of paper it was their choice it may work out better for them and it will work out exactly to do and we think it would be unfair to send this back to now myth and change their position dismissed the purpose for all of this is that it holds the liability for employer to the him out of the responsible under the worker's compensation laws meisner doesn't dispute that c h p had a right to waive its lane but somehow it testimony revealed is going to need medical care for the rest of his life there is no way they come case was ever going to be closed my take sides no case was this just that my client somehow now has does not have the protection protection it simply says all that remains of the workers compensation case is medical payments into the future which is a substantial amount worker's compensation exposure before trial and this is an interesting issue because before trial my tech brought a motion a motion to determine the present cash value of the workers compensation this likely rather my take came up with the number of four point one reasonable certainty is necessary so pretrial i think is necessary and then it can be done however post trial when the verdict comes back and they're not happy with the number and the police get together at that hearing and say how can we stipulate to the future benefits oh amount that there had to be a stipulation by the parties or determined by the ripped womanish and by the industrial commission ok so post trial my check realizes that if it stimulates that amount is not going to be amount equal to three point nine million dollars will simply not be a stipulation income to this court saying we're entitled to the full contribution again without any citation case law the only case that latex cites that it favors this position is two and pieces we can remanufacture your honor i think that the actually you have it isn't a case with conflicting as to whether there was a phone call made there was conflicting testimony as to whether they reached out or not but i think the main issue on the was called up to look at it to make sure that it was safe to operate my client showed no intent whatsoever to preserve that evidence and because of that there was no voluntary undertaking at this they did my think also argues look up a special preservation of the of the evidence so with that judge or your honor i believe that the evidence clearly shows that my client did not intend to preserve the evidence there was no special circumstance and therefore might say i was not prejudiced in any way we made the broad statement that yes everyone in the plant that that's based on the testimony of one of witness goldsmith i believe he said every employee on every shift knew about it i was you know that he worked staggered shifts he else the only knows that the plant was shut down and a day later it was fixed and osha won't we can't get any information from over so we have no one knows the condition actual condition of this machine at the well it looks like it's working but nobody we have no information on what was done or how it turned out later on a protective order was issued and yet we have testimony from fogle he said well he said we made some changes after was pushing on the screws were stripped of those screws were thrown away they were replaced but they were thrown away we also have testimony from of our photo that he said well people kate when there were changes made after the protective order was entered he was i think it was around the time one of those attorneys came up to inspect it i think it was though he believed it might have been the my tech attorneys of this there's been a lot of talk here about martin the keeley and how this has changed the duty analysis well if we're dealing with changes made after a protective order was entered then the duty analysis goes right up window we we we squarely have a duty and we have a clear genuine issue of material fact we have a c i t employee who is stating it's possible that those changes were made after the protective order was entered briefly on the contribution worker's comp claim i just want to cover the procedural history prior to trial we asked we urged the court let's reduce the workers comp to present value they were for everybody objected the court ruled on their side we said well your honor can we be allowed to post verdict than to enter evidence bring eleven it's on this he said i don't see a problem with that well sure enough post verdict c i t's counsel and stows counsel objected we asked for an evidentiary hearing the judge renee he said sorry you don't get to have your evidence rehearing so they pulled out the numbers from dr lincoln somewhere between one point seven one point one one four one point eight million dollars is it take it or leave it stipulate to those figures right now or you can rely on dust and stone to litigate your claims and pay you piecemeal over the next fifty five years in other words take these figures or you get nothing that's the bargain that we were given that is unfair that there's no support in the law on this there's also no support that for of that the notion that an employer can waive a lien based on benefits already paid when there's a contribution verdict out there are three point nine million dollars at some point they have a right to waive their lien post verdict but they if before you waive that lien you've got to ascertain it