most important piece of evidence in the case in many respects the trial judge had not touched by the jury did not trust was prohibited from touching the bike or even inspecting the bike and the trial judge excluded the bike from the jury deliberation room  well they were removed from it they were unable to touch it they weren't able to inspect it up closely all that was allowed was that they were able to see it from the jury box they were not allowed to take it back in the but in the jury room  says that a jury should not take evidence back into the jury room it's always been my experience in thirty three years of trial practice that the jury gets all of the evidence it goes back into the jury room with them they get to inspect it they certainly would be able to i could not find any cases where a judge was allowed or was where the court of appeals sustained a judge doing that i try to find such and such an example perhaps there is some and i missed it  but it certainly does not comport with my experience as a trial lawyer and the jury looking at the evidence and i did give some examples of things that were supposed to be allowed the jury is supposed to do with evidence to me your honor goes back to the question of we have more than our site and there are here and we have our sense of touch very important sense we have other senses as well but the sense of touch in this case was going to be very important and the  i'm not sure i understand so i mean this is a correct what i'm talking touching and squeezing the break would have established without doubt that that break was defect now later we get into this ever changed there was evidence that after the bike was inspected one videotape by our expert mr mclean now and by the defendant's two experts one two different occasions the front wheel was recommended to your your viewing it doesn't take very long to kind of explains exactly the status of the bike before i took this case i said i need to know that there's going to be an expert saying that there is a defect in this right i felt that there was a  and interrupted you or something that i just want to understand what you're saying that your expert looked at it and then two other experts from the other side looked at it and what it changed it was all the front we're elements before an instruction on spoliation should be given under fourth circuit precedent the third first be an obligation to preserve the second is that the object was destroyed or changed with  a state of mind and that the evidence was relevant to a claim or defense that this court has repeatedly indicated that a spoliation instruction is an extreme sanction it's very serious and i take it very serious personal that all you have to do is put the bike between your two wheels and turn it slightly i cannot tell you how it happened or when it happened i do not know right but merely asked for evidence you hearing on this so why not why not have one  was actually the judge offered to do it and counsel for the defendant rejected the need for witnesses to come and testify about it that would that was part of the record where they said no we there in front of the jury and they had the videotape they had the photographs that show that it was slightly askew at one point and it was not slightly askew and later that did not require a spoliation instruction because there was no intent to deceive and there is no there is absolutely no way you can infer in under spoliation instruction the idea is that the jury is allowed to infer that the the evidence would have been more favorable to the defendant had that change not occurred that's not true here there is no such inference that can be made related to this turn now make it very clear to the break and that's what i think i responded to your on earlier and when you were questioning the break has never changed at all and the change to the front wheel has nothing to do with the break it doesn't affect that everybody agreed what what was the problem in this case your honor also in addition to spoliation instruction is that after two days of testimony and on the third day of trial counsel changes its defense completely up until that point their defense was always no we don't have any problem with that very well i feel the break and i know it's defect it's always been defective or expert showed that it was defect that even before we took the case we videotaped the entire inspection and he says at that inspection it's defective but they come in and say it's not defective so to them that's an ok break that's what the case was about on the third day of trial the last day of testimony the fourth day was just closing arguments and instructions on the third day of trial they raised this for the first time they put no evidence on whatsoever that the back brake had changed yet they accuse us of having altered the backbreaker i conceded that you know the pictures show the front wheel is a little bit askew but the back brake absolutely has never changed there's been no change of components there's been no change settings there's been no change anything related to the back brake and they never proved it the only thing they did was to say well our expert touched it during his inspection he thought it was ok and during trial he touched it again and it's not so therefore it must have changed he did no measurements no nothing to test whether or not it changed where what was the argument you're on where they allege that you  the front wheel on the spoliation and they said it how can you believe any of this this is change just take the judge's instruction and apply it to the back brake there is no evidence that that brake has ever spoliation instruction demonstrates that that promise was broken and the promise was to bring the bike in the same condition i don't recall saying that the trial court told you that the brake had changed and especially to the front wheel with the front wheel being the subject of the spoliation instruction there was a third disputed change which was their expert saying this is extremely difficult to pull right your honor that was based on the expert saying i went up and felt the bike that they brought to court today and it feels a lot different with the brake than the one that i inspected a couple years so we have we have three changes to the bike two of which are conceded one of including although this was disputed as i just said the component at issue in this resulting inability to demonstrate the original as sold condition of the bicycle at the time of sale made it virtually impossible for them to meet their burden of proof and the jury did not get past the first question on the verdict it is that fundamental failure of proof not discretionary rulings by the trial court that is the best explanation for the defense verdict in this case a question  does pacific cycle do anything to verify the accuracy of that test and not it can come in your honor first of all i want to say that i think the relevance of the certificates to the verdict is pretty low given that they didn't actually involve  i would say your honor specific cycle routinely relied upon these documents and this is an expert testing lab that they relied upon but the business record process actually does encompass sources that are usually relied upon to checked i guess your honor i did interpret it that way i interpreted it as that if this is a source that you have a right to rely upon keep in mind this is a source that the c p s c requires the civic cycle to use and to rely on they have to use an outside accredited lab by the government to create this report so this this is in this document is something that they are required by the government to rely upon and under the sax case at least that that means that as long as it's part of the normal process contributing their underlying additional information to the business record that's a different area but when this is the exact from the exact same type of person every time and these are the people that we rely on in terms of a government required so what you're saying is that counts as verification i believe a doctor well established think that's that's enough for verification i do it i think that when they say when the government says you have to use this last say they say yes now and i'm sorry they have a marked and relied upon in the case is so obvious that it's one of those issues that doesn't come up very much most people don't show up to court and all of a sudden you have a different it's exhibit one a and sort of exhibit one generally the issue is it's gone it's been destroyed it's a fire scene it can't last forever it's that sort of thing but the core principle that you have to maintain the integrity of the evidence in your custody during litigation i think is the rule and the problem is that when you don't do that it's  wow i think so yes i think it's important and your honour's have referred to this issue a few times that these are virtually all discretionary rulings at the trial so the issue isn't whether we would any one of you would have made exactly the same ruling because over the course of a trial no two judges will issue exactly the same set of rules the question is whether it was arbitrary and irrational for the district court to resolve these issues in the way that it did and respectfully that is not the case the district court spent exhaustive detail going through all of these issues each time they were raised very measured very careful and really really rendered reasonable and reasoned decisions on well i want to also group lee issues on appeal into two categories because i think th the only thing that the jury reached in this case was that there was no defect the jury did not reach the issue of causation many of the issues that are being raised on this appeal are such as the demonstrative exhibit the scope of the defense experts testimony on the accident the accident reconstruction issue these are all issues that go to whether the wheel was changed or not or what happened during the crash the jury did not find anything on causation they found something on and of those things that only the only two issues that i believe are relevant would be the brake testing issue and the certificates which we've already talked i would like to talk about the brake testing issue because i think that while it is possible was concerned that performing a two thing your test because it had a couple of different steps to it was outside what reasonable jurors would do it was also concerned that the bicycle had to have an adequate foundation laid in order that to say that it was the same and at the beginning of the trial the court said i'm going to wait and see how the evidence turns out on this because the defendants are challenging this and i want to see how it goes and then the spoliation issue started popping up and at that point there was going to be no touching or experimentation  the other issue here though is that juror testing creates real problems because then jurors are creating new evidence in their minds that the parties are not necessarily privy to that cannot be cross examined and that is a hornet's nest of trouble and case which was cited by the other side they talk about cases and they cite cases where in fact jury experimentation occurred and you know a verdict was it was thrown out because it's a it's a very subtle situation that is absolutely within the district court's discretion to decide and given all of the issues that were going on with the bike the district court was not comfortable with a related point there your honor says to keep in mind that at the trial it was not disputed anymore that the break was difficult the issue was whether it was difficult to operate at the time of the acts which according to mr logan the defense expert inspected it afterward it was fine so to have the jury go up and squeeze the brake and have everyone agree as everyone did agree now it's tough to not tough to pull would not have necessarily added anything in terms of the record or the evidence with respect to the expert demonstrative i do not believe that went back to the jury i would never expected to monster have to go back to the jury that's not for that's not what they're intended to talk about that yes yes so i do not believe that went back and i do believe it was it was well within the ability of an expert to illustrate a physical principle and again these are causation issues so i don't think they ultimately played a role in the punters also expressed a guess let's talk about the spoliation instruction because that's the one that seems to be of particular issue here i do believe for the reasons we've discussed before that there is a duty to preserve i also completely agree with your honor that the state of mind is merely the his shoe of being intentional in terms of the action required and the evidence was relevant to the claims and defenses of our expert in terms of how the accident occurred the big the complaints that i see are been intentionally done and the plaintiffs were were told they could call their clients back to say that this was an innocent thing that they did that there was some other issue at all and they declined to do that so the district court of course rules on the record that the parties give to i think your honor the latter would be perfectly sufficient to address the case and i think it also appropriately recognizes that the district court had the best ability to look at the witnesses yeah the dense as it was being presented to the jury in court and became extremely uncomfortable with the situation as a result the hour the round of options and the district court specifically said no i'm going to tone that down a little bit i'm only going to give a permissive instruction which in the post trial order it made a point of saying actually may have helped us out in the sense that you could have jurors who were willing to say you know one things wrong with these people i'm not going to believe anything in fact they were told this it relates to this issue you should consider this with all the other evidence the idea that while no one is going to get up here and suggest that getting spoliation and prince is a positive development it was nowhere near as bad as it could have been and the idea that it was uniformly a bad bad result and could have had no other consequences whatsoever is not a reasonable  the only i guess the the last issue that hasn't been really addressed is the offer of judgment issue is there any interest and argument on that ok so then to wrap up your honour's basically a box before they actually shipped them out and i also heard mr logan's testimony that the back brake worked appropriately it is inspection and therefore would have been appropriate at the time of sale and the accident also so even if all of the talents of  reconstruction issue about whether this this expert mr logan could testify was an accident reconstructionist and and in fact he was not qualified the judge let him testify from two pieces of evidence one was that the wheels were askew and to that the tooth was in the handlebars that is just simply not sufficient basis or foundation for an expert to give an opinion regarding whether or not the plaintiff was telling the truth about how the accident occurred we allege that she put the front brake on and she flipped forward and he says no it was a side fault and i know that because the wheel was excuse and the tooth was in the handlebar he admitted various places throughout his testimony mr logan did that neither one of those two elements which he based his opinion on was sufficient to reach any such conclusion so we believe that the judge  by allowing mr logan to testify as to accident reconstruction and there thereby call into doubt all the plaintiff's testimony what we really have here your honor is a huge surprise and that's what it is a pretrial or is designed to avoid we are not here doing trial by ambush and that's what end up happening on the third day of trial we were ambushed and they way they test they their contention all along was that the brake was fine mr logan said when he inspected it was fine and it was fine now and then he changes his position at trial because it clearly was not like a party that the bike showed the the handlebars had nothing to do with the back brake and that was the back brake being defective which was the heart of the case putting that right in and out of the handlebar orientation and everything to do with sort of the  an adverse inference can be drawn that we intentionally or even negligent what that that there was an intent to make the evidence better that it was going to help our case that's what the adverse in sprints is all about th alter the evidence when it comes to killing them and so it's just the the inference has to be that the evidence would have been in a better state had it not been altered that the that the evidence would have been more favorable to the defend that inference cannot be drawn when the plaintiff produced it on three occasions in our own video and there are two occasions prior they can you cannot draw the inference that the evidence would have been in a better state that's the point that the your honor i don't believe that the evidence would have been more favorable to the defendant in any way and that there's any kind of inference the jury can draw just because those who look for us got altered the i s i said i suspect ok i didn't have evidence one way or the other how it got change i have no idea how that changed i suspected because i put it in and out of cars ok now let me address the duty to preserve they never sent a subpoena on this you're absolutely right we didn't have to bring it to trial we could have thrown it in the dump after they inspected the case law is very clear about that and no adverse inference could have been drawn from that we had videos we had to take you know we  we had them inspected the case law is very clear on that the let me address the certificate safad sent to city aspect of it and you  it your honor and i just will wrap it up very quickly just simply say that we were ambushed on the third day of trial this change the entire course of the trial and that all we are asking for is a fair opportunity if there is really