i'll address the issue of harm was there first and explain why when this case is returned that has a jury trial we need to also return it with all the evidence so that the judge can properly warning and the large part the big picture of the warning was ambiguous some jurors may be the type of jury that reads all the fine print on everything every time it's used but that emphasizes the reason that the jury's experience this brought in this kind of a case a very important because we have objective reasonable standards that need to be applied to a product the fact when you have one fact f the courts the common experience will be only one perspective the judge may have felt that it was unreasonable to use the latter in this manner but if you have the debate of the jurors they may they may go different way well it's a test on the consumer expectation test if i understand it correctly it's like all reasonable consumer you know it's an object you cast so on the surface regardless of the angle and regardless of whether the prior ply is in front of the back then your position ears and ordinary reasonable consumer would object can we expect the cleats the level and i put it more or less right more or less i'm not saying though that if the angle of the latter is at thirty degrees or something a reasonable angle in this case we're talking the difference in the angle ok three percent between what the latter label says and like this because i can understand how you can say if there's the absence of something i mean there's a negative then you can see why an ordinary reasonable consumer on a bus that turns wrong on would expect to  out and grab the handrail hand rail isn't there so it's kind of self evident that there's a problem and that the problem caused the injury or even don't have a seat belt at all it's sort of self evident that you're not going to be restrained in if you're not restrain him you hurt yourself why you hurt yourself so my question here is i don't see how it's self evident that  see i can understand that first respect to your past on the facts theory but i don't understand it with respect to the ordinary reasonable consumer theory because there i don't think you can or need any kind of if i got it correctly what the record shows with respect to causation is that he was on the latter and felt a need to give way basically and that's the evidence of causation no there's quite a lot more like there's there's a mark on the  a crack and where in the in the area where it was resting on the concrete left where on the other side so if there is finder the questions of relevancy and reliability of going to change so we think that when he looks at the case with mr paul as a skilled witness which respondent has not even argue good morning james hepworth on behalf of the police think there is in my in my estimation two questions at this court need to answer first is whether the district court abused its discretion in excluding the testimony of the plaintiff expert mr david hall second is whether the district court erroneous we granted defendants motion for judgment as a matter of law the answers to both of these questions  that there must have been a crack preexisting this injury which might have propagated all over time through fatigue and that i think is one of the reasons why the district court felt the metropolitan not qualified he admitted because of the methodology by which mr paul went about forming the pinions and that in that instance the district court properly i think that considered several of the factors that are set forth in dobber and other cases and concluded that the testimony was not reliable and that was clearly within his discretion cases make clear that the court is to be given wide discretion in not only deciding what factors to apply but in the that is obtained from that with the exclusion the proper exclusion of mr paul's testimony the theory of the plaintiff under the risk benefit analysis fails because that requires expert testimony to show that injury was caused by a defective design caused by the product it's true that the second prong of the barker analysis under the consumer i guess is the first prong the consumer expectation test does not require expert opinion however i think the court the district court properly found here relying on cases like solely and more sense that this case was not a proper case for application of the consumer expecting it seems the family had footpath and cleats made out of college while chloride i think it's not within a consumer's ordinary experience and know how that kind of art for assembly is going to react under different fly to the rear the plaintiff did not use it that way certainly didn't intend didn't use it in its intended manner and as a district court pointed out there was no evidence of what the reasonable foreseeable have did not follow the instructions that were on the ladder with labels the going back to the reasonable use by a consumer of the latter with the fly in the front if you set up the ladder that way there are some visual cues apart from the labeling or some visual cues which tell you the bladder is not set up properly very talked about the fact that the cleats don't rest flat on the floor in but from the visual cues that one gets when it sets up the latter in that way because the district court excluded the testimony of mr pawle and concluded that this was not an appropriate case for the consumer expectation test and concluded that the failure to warn ferry was not appropriate given the fact that mr plaintiff had not read the warnings that were there it didn't matter whether or not the court erred and ruling that the plaintiff had waived  was not in granting the motion for judgment as a matter of law i was not weighing the evidence as the appellant suggests rather it was performing its function same function that it would have performed had a jury been there determine whether or not there was sufficient evidence to go to a jury and in this case there wasn't and the fact that the jury was was not held by the district court to have been way whether erroneous or not would have made no difference and i think therefore as harmless  engineering exam and the fact of the matter is whether he'd passed the engineering exam or not did not affect the kinds of opinions he was required to make in this case he wasn't doing the ordinary things the consumer does around the house they could decide that it might make practical sense to allow them to put him bed at a little higher angle because if your door hinge doesn't allow the door open ninety degrees you can't get your chair through the door it's a matter of looking at the by supplying your common sense and i think in this case you could do that it is also helpful on the risk benefit analysis to have the doesn't matter under the law if the plaintiff didn't read it because the plainer then all plaintiffs all consumers get the benefit of their warning it's a jury question in this case he did look at it