their final case of this morning is sure lindbergh versus burlington northern santa fe railroad company number eighteen dash six zero zero three now what we're learning here is the district court by granting summary judgment essential he didn't pay any attention to the evidence that was a deuce by the plaintiff if you look at the order the judge doesn't say anything about the testimony of mr mr subfield or of the plaintiff about the spying out procedure could you have the bottoming out without negligence well that goes to our the next on both rails and again going back through his deposition when after counsel for the fence and had a chance to try to bolster his testimony at no time did he ever say that he did all four measurements and based on that your honor the way a jury can get there is if obviously if they didn't comply with what was necessary under the federal regulations to measure the flexion a jury could could determine   that there is nothing that would allow a jury to determine that it was it least five eighths of an inch that it went down when the train when he took what exactly on the regular lation yes you're exactly right if it went down at all if there was any further depression based on the weight of a loaded train it he didn't remember what he did that day that particular inspector and caliban he was much more circumspect in the other measurements that needed to be made mr wallace was not in his testimony at no time did he say that and his normal course in practice that he made those of the three measurements that the jury find in your favor without expert testimony yes what what i what i said in our brief obviously i think expert that he doesn't talk about this the experience of these two gentlemen when the strain bottomed out even without experts estimate i think we've created a genuine issue of material fact that gets us to a jury now certainly we would prefer that we be allowed to use mr blackwell as an expert and again i would ask the court to take a look at the account because it is a roadmap as to what that court did and saying well mr blackwell can testify that the railroad the effect greater than two a quarter inches if i looked at the back was do we know that it was depression or was it something else with the rail well again mr wallace wasn't very circumspect in telling us exactly what it was all i think we can go on is w to a show your work and they say they simply didn't do that i'm trying to figure out what you would argue to the jury would you argue here's the standard and because the conductor mr sutter feels as has the worst one that he's experienced in forty seven years which is something that didn't the rail that there are court at must have been out of compliance with almost is a race it's a local situation and again we did have we did have other testimony i mean there was another mr overstreet as i recall it's in the record when they interviewed other train crews at one of the crossing that day he said he had rode rougher than normal so again there's there's more than enough evidence for a jury t back to judge phillips has a question don't you need an expert or doesn't the jury need an expert to unable to reach that conclusion i don't think we we get there in your exchange with judge q and she was concerned about the jury having to speculate about the flexion the measurement and all that certainly and the test is expert what exactly are arguing in your brief you say that the district court erred in excluding his testimony and i'm quoting in its entirety yes so that seems to suggest that in his testimony he did say that the rear road did not they were in violation of the regulations but again going to cowden in that order they said no mr blackwell can't say that he can talk about the very narrow issue he tactically chose to proceed upon in the district court when there's no facts to support the claim he entered that as the district court noted is no due to the tactical choice in the district whatsoever not even an inference from an expert witness saying that for a locomotive to bounce the way it did in this particular case you know i'm speaking hypothetically here if that's even possible because there was no force is measure in terms of the locomotive although there were methods to do so but the locomotive would not have bounced like it did unless there was a defect in the track and i just asked you to address this deflection  standard practice was to account for deflection in coming up with this calculation i believe he did i believe he did based upon my question he was cut off if the court reviews the transcript he was cut off in his answer when he began to explain the measurements for the deflection and when he said so there's actually in the transcript a dot dot dot in it a question by mr by mr o'brien and that's why i followed up where he explained his his general practice is now he has to here to be tested and he has to be certified to do the strike inspections he's also wrote or or or there are f r eighty inspectors federal government inspectors that actually ride with him on a routine basis to make sure that he's doing his inspections correctly and so yes i do believe that we establish the fact that her his routine he properly measured for the displacement due to a vertical drop his deposition nonis clear that he's asking on cross so you know he's the only thing you did you use your string and you measured and he says yes and that was his testimony about the measurements did he can account for the displacement yes did you do you follow the regulations when you do these inspections and the answer was yes and in there's a couple of issues with the regulation itself the regulation tells the track inspectors to account for the displacement there's not four separate measurements or anything of that nature they know by their training and experience how to do that and so when i asked him whether or not he followed the regulation that took into consideration his training and because there's not going to be there's not going to be specific memories three years later this is me and knows this truck don't get me wrong he goes over it forty five times a week well there might have been if it kept better records well the tapes doesn't say that and his testimony that it was his ring up i set a record that we have a record showing that he took the election into account yes or no i haven't found one but if you've got one tell me where it is in the wrecker and it's not testimony i believe money enough for that to go to the jury you're saying yes if you're saying the case with mr wallace admitted that he did not follow the federal regulations when he inspected that particular piece of trash yes then i believe that  it's possible that another negligence proceed or in that could be under a different regulation perhaps under a different theory i still think that you have to show some sort of cogitation that that that be but for it pardon me i still think you have to show that there was a violation of the tune a quarter for instance that would make forty miles an hour too fast so the answer is no but it would make a difference well if it it  a difference but there still had to be shown the violation of two and a quarter i think it's a fact that would have to be taken into account so the jury could decide on that if he said that he forgot i think there still has to be evidence that it was two and a quarter and that can be they've ever experienced could jury infer reasonably from that testimony that it was at least five eighths of an inch more no your honor it could not and part of that is because of the basket in which the eggs were placed in the district court it had to be the measurement because it was not brought up plaintiff dropped his locomotive inspection claim that could cause and it wasn't just  that could cause the locomotive to move or to have forces in there besides going straight down the tracks the locomotive could have had a defect and that was not explored in discovery or anything of that nature and this second option or the third option i guess could be mr schumer train handling itself and because that was not an issue in the district or because of the way that plaintiff master the master of his complaint brought this case mr that that a locomotive can move or there could be movement including the sole control of the plaintiff himself when it didn't choose that route what's the reason for the one year requirement on keeping notes it's to make sure that in case we need them later that we have them available right and what about counsel's argument that you knew right off the bat with this as soon as the train got the pulse that there was at least going to be an issue about the track well why do you not have to keep those notes and if if your answer is well the law doesn't require us to do that's fine that i'm not sure that that keeps you away from a jury her testimony is a little bit different in my my recollection of the record was in fact mr wallace could not recall if they even used paper notes at the time of this incident and that they may have been all like tronic which is what means you can keep electronic records just like you can paper notes write all of the electronic records were presented to mr schubert's attorney and there were no there were no electronic notes on his measurement his job and i think that he did testify that he took into account the displacement it's a trying to doubt off the track out there missed was directly help responsible for that he liked i think you had an incentive to keep the trains on the truck furthermore there  reported in this case and so i do believe that mr wallace did his his job in this case four to five times a week which is double and two and a half times what the federal railroad administration requires which was the fact last why didn't that create the disputed issue of fact and and and then i was listening to your answer he said well there are there are all kinds of reasons that there could have been a severe bounce it could have been the but it could have been something else and i understand that point but still would it be unreasonable for a jury taking into account your point to a jury to take that testimony and say you know i think that combined with everything else that they were out there i believe that it would be unreasonable in this case there was no trying their testimony specifically to track mr or conductor in the case to testify that with the worst one could not testify to mr schumer train handling for instance and neither one of those gentlemen on the train to testify to the track conditions whether or not they were white or whether they complied well as the federal requirements they're not able to go out there with there's a strain and measurements they're not trained for that the railroad is and so if the railroad runs in court and says we don't know because it's been three years ago even though we were advised on day one what are the plaintiffs supposed to do they can come in with their ruler and say we're not measured and here's what the deal is well the district court was given a very narrow question in this case and it was whether or not we violated the federal regulations and the evidence that was listed below was that we did not now there was only one person a track inspector who was inspected we we turned over the next of every track inspector who had been over that truck for a period of one year before and i believe it was six months after deposed and he said he did his job on that day that was the record below and that was the fact that the court decided upon correct and i just ask you one thing sure i take it you position is that they needed an expert without an expert they're not able to survive summary judgment is that your position that's my position all right do you have do you have a good do you have a case that supports  support that was just a general rule that is no i want to case i don't want a general rule i know the general rule that you haven't you have a good case for that position off the top of my head i apologize but the cases are or are multitude that  within the province of a jury to determine the the the the standard in the breach or the duty and the breach that expert testimony is required in the new case i don't believe that they are and i've never had a rubber case where they work in terms of