of the expert testimony by the district court of dr carol pollock nelson second the district court's analysis legal analysis of kentucky products liability law and its application to the facts in third the district court ordered a practice in his back yard he released the arrow from his bow and upon release in the arrow it shattered and the part of the shaft went through the dorsal webbing of his left hand which was a hole which was holding the bo we sustained serious injuries that resulted in around sixty thousand dollars of special damages and one in the course of this action we had we retained an expert dr carol pollock nelson who is a human factors expert to to evaluate the arrow in in particular the message that an arrow message that eastern places on its arrows that direct consumers and users of the arrows to a website or a phone number to then get the warnings that they give regarding their arrows which is exactly what happened in this case that the arrow could shatter after significant amounts of use and injure a fourth criticism first of all with respect to the test for expert testimony in this circuit in pretty much every circuit and in the country there are it's a two part test with two sub parts in so it's pretty much it's step one and step two a in step two be the first part of the test is the threshold requirement which is a requirement a qualification by knowledge skill experience training or education this doesn't seem to be in dispute the district court knowledged the doctor care dr nelson was qualified as a human factors expert human factors is an accepted field or discipline even by the sixth circuit  easton doesn't dispute her choir credential her credentials at least her qualifications as a human factors expert so the first part of the test is really not an issue it's the two the second two parts of the test and there are the sub parts to a too big to be which are signed it requires scientific technical or other specialized knowledge which will help the trier of fact to understand the evidence or to determine the fact and issue and then to be reliability is rope as well to say to us seven have to be through  testimonies based on sufficient facts or data just known as is the product of reliable principles and methods and the expert has reliably apply the principles of methods to the facts of the case so dr nelson's fourth pinion their own message is this the content of the on your own message fails to adequately alert users to the hazard and draw them to the website mr yats mr johnson's failure to pursue the warning referred to on the arrow by going to exactly right but he did not go to the it did not draw his attention enough and that's really the point i think that dr nelson makes is that yeah it's there in the you may see it or notice it but it doesn't stand out enough or doesn't convey to the user the consumer the actual danger that lurks in the only the only way you get that is if you go to their website or call it toll free number and then it tells you exactly what can happen and what dr nelson says is it needs to be stronger it needs how threatening a lawyer how alarming is that the nature of it is that it just wasn't alarming enough right but isn't how alarming it is depend on how dangerous the arrow is that that just the fact that that he noticed it isn't enough because it didn't it didn't shake him up enough for alarm and for scare him enough to go to the to the website or anybody for that or are a lot relates to the criticism of the judge had with respect to or maybe i'm thinking of the same one i thought oh the number two says the website instructions were didn't adequately effect right that's that's di could argue that any reasonable person who decides to shoot a bow and arrow is a way or a various reus and you would think that any reasonable user might well upon seeing the warning on the arrow follow up what is sad or does that i think the first part of your of your question or your critique or criticism i disagree with  fiber cases probability cases is that over time it's like a tire on your car the tread wears down you get to replace it same thing happens with carbon fiber over time the carbon fiber it becomes weakened you get micro can become we can to the point where it breaks or shatters and then it can in the instance of a carbon fiber arrow to do what happened in this case in the instance of a carbon fiber bicycle wheel of which a case of have before it just crumbles in it throws you and you get into that way so that's just inherent in the nature of carbon fiber now the second part of your question was your find me was well reasonableness of that well i was asking about what the reasonable person who takes up the  right archery would think about the activity right off whether it would be reasonable to see the warning on the arrow itself and not to the website and does that has anything to do with the analysis of this cat yes is the fattal question yes the yeah that's the whole crux of this case the crux of this case is that the the fact of this on your own message was too small number one it's probably maybe four six point as opposed d research c p s see consumer products commission reports the american national standard american national standards institute n c she goes through a litany of peer reviewed data research of what district judge was looking for was some indication that she had access to it whether she generated or not trying to read to her not that she had access to some this information we couldn't discover it so not necessarily say to arrows that but on the other hand with that that would be what one would do if one were if it were out there but what she is she's a human factor  for criticism thank you i was raising the concern that it might be necessary for the expert to have knowledge of the danger of the arrow in order to testify consistent with dauber on the question of whether this was sufficient adequately to reflect the  danger so that and we gave some examples when i was leading up to this question like you could have something that's a one in a million chance maybe a very tiny warning would be appropriate that fifty percent chance you would want something that is real alert  real i mean you agreed with that i'm not sure it's right but you agreed with that that it might make sense that if something is more dangerous write a bigger warning and write an amount and my question was is that a legitimate basis to reject this expert testimony on the ground that that aspect of the criticism she lacked expert testimony to to deliver or another way of saying this is is this case distinguishable in an import in a material way from one where there was evidence of just how dangerous these things were and just how likely they were to fall apart and so on which the district court and its  raised i didn't understand the relevance of the first reading but it seems to be relevant he says there's nothing in there really about how dangerous this particular thing is the testimony is just about how big it is so it's sort of blackness the other half of the equation when you're talking about whether needs to be large you see what i'm asking i think so and the i think part of the answer is that we attempted to discover other similar incidents and we did discover that there are some other similar incidents we i think we discovered fifteen or sixteen including this one but we were stymied when we asked for different for other similar incidents from three different product lines that were similar that were carbon fiber arrows maybe made manufacture a little bit differently but then also had the same exact on aero message because they had the same underlying defect or problem and if we could have gotten ahold of that information the maybe that would have provided the data to which i think is what you're asking is if we had that if the expert had that data then they could base their opinion it would be more readable basis for their opinion goes to that i guess i'm at i'm just asking you if you agree that the grief of danger affects how large the type should be in order to opine on how large the type should be you need to know the degree of change and i think she does right and she didn't seem to know about the degree of danger she just knew about how  large type face should be if you told me what the degree of danger was i respectfully disagree with that i think she didn't know what the danger was she i knew she reviewed what the actual hazard in danger was with the arrow and that someone  was using it it could shatter and go through your hand she considered to be a pretty significant danger that required more of the increase that's what happened in this case because that's what happens in a lot of cases i mean we have there's a lot of other similar incidents there's a lot need only apply well established kentucky law to the record that's presented in the case and i'd like to jump in by picking up right to judge roberts with an issue that you raised with this issue of proportionality and its importance to this case and i think you hit the nail right on the head with that that the nature of the warning and what would be required to be an adequate warning varies based on the proportionality of the risk and that would mean not only how much injury would be done but also how likely is it that this is even going to happen and miss polly nelson who is excluded below does not have any basis testing opinion empirical bit of historical data to pine on that whatsoever and she admits such convenient sample where she called a couple of sporting good stores told them that she was trying to buy some arrows for her husband asked some general questions and even she admits that the results from that convenient sample will not representative even if done to strict guidelines likely skewed the results because she basically didn't tell the truth in why she was doing certain things and people may have a tiny purcel and that's i think they did district court relied on that heavily when deciding that that fourth opinion it is not based on significant power scuse me sufficient reliable facts or data to support an admissible opinion this course of where the standard view for this type of an issue is over the abuse of discretion in the court has broad discretion not only to determine the ultimate question of if the information is based on reliable facts and data but also how it's going to go about determining reliability if she'd researched and understood the degree of danger and she had i'm not saying that she did but if she did would with that then be enough in conjunction with her knowledge of how much writing or how big writing should be in the for how much danger would that have been enough to to get her evidence to the jury potentially however i think there would need to be preaching that i'm sorry what would be the theory for that for allowing that it's just that i think it actually goes right into judge givens comments to the opponent a moment ago which is the second portion of that is also to show what is the connection that you're drawing what do you using to draw the connection so if that's not enough than your then you're just saying no one can ever recover from one of these types of claims not at all your own proportion now understand the proportionality of the risk and then connecting it w sure that she failed on the account with respect to how big type should be you know she has some expert knowledge and she's looking at the literature much literature is out there on this stuff maybe there's a lot assume that she had enough on there which she still fails you would argue because she doesn't know enough about the scope of the risk to be able to apply a lab type route yes sure but if she had it and if she had sufficient knowledge of the scope of the risk that ought to be enough to get to a jury one would think i would agree with you if that's just not the record that's presented to the court nor was it the record for the district court if our want to engage in hypotheticals it would seem to me that that what you could would do if you were applying in this type of case if you could obtain an expert that has to use a bat arrows in particular in the manufacture of arrows in the safety features and  behavior and what it takes to get somebody to sit up and notice that would certainly have been a much more helpful in probably why had i said it would have i think certainly some expert testimony as to the scope of the risk or expert testimony as to what a reasonable person would do if he saw me it seems like you could have a case where where there's a hole in the road in the in the city had put up a big require an expert for that exploring the hypothetical i would think that in many cases they would be true i would imagine there could be a case depending on time of day visibility on the road the nature of the hole the nature of the side and some circumstances woodenly and  that's the case that is generally an expert you're quired and it's interesting the opposing counsel brought up that the arrow carbon fiber all being similar to a tire and that's exactly the circumstances that were met in kumo tire and goodyear tire in the supreme court of kentucky below where you had a tire that would have been drawn using exploded and cause injury there were warnings on the tire there were warnings in the owner's manual the driver chose not to read the warnings they drove on it and it exploded and they basically brought a third one case nobody disputed the experts qualifications to talk about warnings they disputed the methodology of how they got there and the fact is they never do the connection they start with generalities and understand about warnings as we have in this case she says larger is better than smaller font you know certain colors are better than other colors but they never do any take any scientific technical steps to go from the generality to so in this case this must be a fact and that's what i was getting at really not only the proportion of the danger but you need to have that knowledge and tie it have something to bridge it to the general rules in this case dr prognosis and cites in a report to numerous general concepts and but when questioned on deposition what was for present of the district court was that she didn't have any speak anything to link the two and she admitted as much and that's why i think on both counts that she fell short in the district court's ruling in that was that mr young stated that he noticed the an arrow message but he didn't read it or that it was in conspicuous even though he saw it and this is i think it's important to point out the record that doesn't come from mr yats he gave his deposition testimony he never filled out an erratic sheet saying anything different he then answered requests for admissions in which he said that he so are understood the language and the arrow as saying what it said in the requests for admissions it is i believe it's record seventy nine dash four pages six  eight where he admits to noticing and understanding the the language that's written right on the arrow only afterwards only now do we get an appeal has this argument arose that will take me he didn't really get it   to take them into account and in this case there really was no evidence to suggest that there's is a major major risk and opposing counsel as raises issue that well maybe this has to do with the o s i in the motion to compel argument his third argument that he wanted to discuss with you today and there's one i think important clarification that point as well opposing counsel has referred to these other similar instances but there's really nothing in the record to suggest that either the motion to compel issue or what was brought before the court was that a ant asked for every reported incident on every one of fifty different carbon fiber airlines forty eight of which have completely different manufacturing and design processes put into them so going back to issue the with a completely different design and manufacturing process put into these other carbon fiber arrows the stands to reason that the proportionality of the risk on one or zero may be different than that of another and even hypothetically arguing this exact one we're talking about may be good for one of maybe not good for another based on the nature of the makeup of that particular sara the judge's decision to narrow the scope of discovery to the specific arrow in this case and i think was called the epic arrow which is correct it would be yes it would be a particular to carbon fiber as in general because the testing performed would be the same the results of the testing and various errors depending on their make up maybe slightly different but ye damage bending the arrow rotating their own twisting it to try and listen for anything in their design in such a way that if you hear any sort of a crack or any sort of sound that that didn't need to wait over past you it's going to be overly sensitive i should say that it will catch things even if you did the next shot wouldn't break it it's going to catch it early the odds are in the record is that he agreed that he could that he cut the language in the morning the with the exclusion of dr pollack nelson that is dispositive of the really the remaining issues in the case there is it's not even been argued by opposing counsel that expert testimony would not be required in a case like this and the experts in the court found that much similar to the entire argument we spoke of earlier that the warnings required for something like a carbon fiber a discovery of similar alleged similar incidences and i believe with the testimony of easton's representative character from this is one of these cases where there's the briefs are not sealed we have any concerns about saying things in the opinion that are sealed if we rely on parts that we are i'm not sure as far as publishing opinions as far as matters that would be sealed or unsealed truthfully i'm confident that the issues that are covered in the sealed portions that the court need not even reach those they generally have to do with the argument for punitive damages in this case the i just know the citation you sent me to use so  accidents princess cases liability you don't need liability experts for those types of matters now what is it about this that generally requires because the product is the way the product is put together is something that you would need an expert well you know i'm i'm i'm asking about i think no adequate notice i think with a notice something you need an expert for in kentucky there's if there's precedent if there's a if there it and going back to this issue with the o s i eyes again this intertwined with with your questions about whether or not the expert knew the scope of hazard or the what the what the risk was the the size of the risk if you will in the when we were we were limited on discovery and in getting these other it gets up other information  information about the other lines and there are almost forty eight to fifty other different lines that we were very limited in finding out just how widespread this hazard may be and so i would i would submit to this  if you if you are inclined to decide in our favor that we need to get good we need to get that discovery in order to figure out the answers to your questions i'm out of time and thank you for