digital time keeping device on the clerks screen will have twenty minutes or their argument the apollo all have five minutes or a bottle weighs remember only the cork of the chord is permitted to record these proceedings mr leonard good morning good morning your honor when you can hear me ok i can yes ok as if we were sitting on the bench i just want you to know that i i have notes in front of me and i also have the record up on another screen and so if i'm looking this way it's not that i'm not paying attention to you or mr blair i'm reading something but ok anyway if you're ready to begin please begin sir thank you honorable justices of the court mr blair replace the court st of all i'd like to point out the pleadings basis for this case we filed a complaint in judgment without any supporting affidavits the only support for the motion other than and the defendant's characterization of the evidence which we had presented to them was that the responses of the defendant to the  there was nothing provided by the defense in regard to the affirmative defenses at any point in time during the proceedings now as the court of terrorism where we're here on the question of whether or not the trial court ruled properly on the motion for summary judgment mr blair filed his motion st and as the defendant in order to prevail on a motion he need only establish that the plaintiff had failed to produce a fission evidence at least one element of the cause of action in order to withstand the motion now as far as the plaintiff's motion for summary judgment of course we would have to establish evidence on all four elements of the cause of action we believe we did that sufficiently  mr liar and on behalf of the defendant has pointed out in his position i believe is that the evidence that we have about which we relied was either not admissible because the dead man's act or did not amount to admissible evidence because it was mere speculation we don't think that is correct  application of the dead man's act and our position would only potentially apply to any testimony from mr hood my client since he is a person interested in perceives he h represents so i was referring to larry and i'm sorry but even if karl maxie hood were here to testify yes wouldn't he be able to testify to facts that were not disputable by the other party so again larry good the executor which is the only person who we have as witness as a witness who would potentially be eliminated from testifying as the by the dead man's mr larry hood was never deposed that the depositions were taken by the defendant after the motion for summary judgment was filed and those depositions were of four police officers all of whom were present doc at the scene and an accident reconstructionist who was hired by the plaintiff now the elements of our cause of action and force  st we have to demonstrate that mr hampton defendants decision had a duty it's undisputed that he was driving on a public iwate so he had a duty to drive safely to protect other persons on the highway  there's ample evidence to show that he breached that duty by the testimony of the accident reconstructionist whose estimate was that m the depositions of the four officers who were on scene as well as information provided by larry good the executor who provided that information about the physical  situation regarding the highway itself afterwards the breach elements is the speeding we mention the failure to keep a lookout and failure to take action to avoid the collision mr hampton admitted to trooper campbell that he did see mister hood pull out onto the highway in front of him there was no evidence from anybody that there were any skid marks preceding the point of collision and so there was no effort to stop by mr hampton mr hampton a deficient lee admitted to jason stuart the deputy who conversed with him at the scene that in the record and i i was going to ask both of you gentlemen whether or not you would like the ability to supplement your briefs with ram what versus vampyr stand which was written by this cour  fourteen days out appreciate that due to my schedule ok we'll give you fourteen days and then mr blair will give you ten days to respond or what can be discussed in the supplemental proceedings from this court nothing else ok then your own the clerk is directed to issue an order in that regard ok go ahead mr leonard thank you your honor and if you would like to discuss ramblin at this time for the benefit of the other counsel you are welcome to do so well the the portion of at trial and the the underlying problem with that case was defense counsel in a case took the position that that the suspect one of the statements from defendants the scene was taken improperly in violation of ethical rules the court ultimately decided that that was not the case and that the statement could additionally be considered because the  admissible against a person's a state after death citing rennick death does not erase an admission from the party slips citing running again and the statement under oath contains relevant admissions by the deceit another statement that was made to deputy jason stuart was i believe a false d exculpatory statement which would be admissible against the defendant and i i must mr hampton and indicated to him that the seed hood was stopped in the highway both of the state troopers testified in their depositions that they that he was exited the side road out to the coal mine road and was for sitting about eighteen or nineteen seconds before he was struck from the rear was consistent with  appearance of the same and they both in gave opinions to the effect that they found fault for the accident with mr amped and no fault with m you would agree that it's the jury's province to decide fault the issue here is whether there's a question of fact right this was on summary judgment yes your honor of course  jury could rule either way on that portion but my point is the only thing this court needs to decide is whether one there are sufficient admissible facts to create a question of fac you agree or disagree with i agree ok what are the things i didn't understand and this is carl maxi hood was killed as a result the accident right away dead on impact no found that weird well  because we were only informed that he asked away prior to the filing of the suit ok i think he even passed away prior to his court date on a ticket that was issued but it wasn't as a result of  correct yes it mr liar did the same attach honor we would also the the statement of mr hood at the scene given to share rent or we we have argued in our brief and maintained that would be admissible a nd as should be considered by the court because it was an excited utterance it was basically so characterized by sheriff gregory said that he was excited and agitated when he made a statement only three affidavit davis i believe that were provided in support of our most of her summary judgment those were the affidavits of share troopers campbell and raf and the only purpose that those affidavits were presented for was to demonstrate that the physical damage to mr hampton's vehicle was greater than the physical damage to a very similar automobile he was driving a two thousand and seven dodge charger and our accident reconstructionist said photographs of a collision involving a two thousand hundred which are virtually identical arm appeals and the it was a safety administration testing process where the collision ed occurred at thirty five miles per hour i believe w a stationary object and both officers stated in their affidavits for all three rather that the damage they observed on mr hampton's vehicle was greater than the damage that was displayed in the information provided by our accident reconstructionist so defendant argues that that those affidavits are not to be considered by the court because they don't sta facts well those are only i don't i don't understand that argument what facts don't they state because it's a different car they still back that's my point that's my position exactly to know what the court did in this regard on that would you agree i would agree i saw on the record the trooper campbell did kind of a reenactment of the scene i guess on his own to determine whether mr wouldn't have been a true or false statement and he did that for their purpose i believe and also i believe this testimony indicated that he did well i don't have that rule right in front of me your honor but my recollection is that that rule requires that statements contained in affidavits have to be statements of fact which could be testified to at trial  if if there were you can't state conclusions or hearsay from of course conclusions would be permissible i believe if you're an expert witness but as far as the factual basis concern you have to be able to testify in the affidavit that it's based on your personal knowledge well can't be paste and maybe this is a better question for mr bleier but he claims that the trooper's test observations worse back elation and conjecture what would you say to that i would say that is not correct and i would call the court's attention to the case we cited in our brief tips were vs no rose which in which the court ruled that the state police officers who have broad experience can testify as experts so they can rely upon what they were told by people who are at the scene of the accident and even though they were not at the scene of the accident when it occurred they were told by post parties the information in this case and so those personal observations at the scene you feel that those combine can make for a missile testimony for those individuals i think what the officers observe would corroborate the statements but the statements themselves our position would be admissible yes so it's a follow up with what justice barbara's just indicated then the relief you're asking for is that because these statements are admissible you have raised a genuine issue of material fact as to whether or not this case should go to trial and we should reverse the summary judgment is that what the relief you're asking for yes ok did you raise any other issues with regard to the propriety of any other rulings in this case but maybe we missed well i don't i would be surprised if you missed them but i i did thank you know we all thank you for that well i did raise the point that we believe that the trial court was also in error in addition to granting a defense motion for summ yes good morning my pleased the court as you know my name is joe byron here representing the senate apparently in this particular case this is kind of an unusual case and it sounds position of the defend in this particular case is that the circumstance plaintiff is trying to prove his case or get past a summary judgment was circumstantial evidence in the evidence in the courts we all agree there is even an instruction on circumstantial evidence but there has to be some factual basis to allow the circumstantial evidence to allow the case to go forward and your honour's to the basic and not any injuries from this accident careful mr meyer were getting all their check your honor yes yes and i've and my ninety one year old father still comes the office so oh my god tell is that the plaintiff has to come forward with some evidence as to how this accident happened even taken and it's kind of a two process even taking in allowing the admission of these statements made to various persons  by both parties at the scene of the accident judge no one of the statements even considered all the ones that the plaintiff wants to admit talks about how the accident happened they just talk about someone pass someone someone call out even the plaintiff's expert the only expert he just talked about not how the accident happened he could only testify as to the closing speeds of the to the polls judge taking for the sake of this argument even if you would allow these statements or whatever you want to call them by both parties if the sunni and the expert there is nothing your honor that allows unless you speculate past the circumstantial evidence to get past to get to the jury then i can't the observations of the police officers be admit the personal observations at the scene your honor without conceding anything i will answer the question i don't disagree it's like any kind of drama it's like when we have a you know regular police officer come to a simple car crash case i think a police officer is allowed to testify what he or she observed after arriving at the scene i don't think that's i think that's pretty elementary and we've all done that in our car crash cases but even in a car crash cases we don't let a police officer give opinions unless they have any kind of expertise or training or do any specific investigation as to where the point of impact is the thing that nature but i agree that a police officer in a car crash case such as this can testify regarding what he or she observed once he or she arrived at the same well we know that police officers can't certain information that juries can easily figure out right if it's correct it isn't isn't it really up to the trial court to figure out what the officer channer cannot testify to and then if he can give an opinion based on his experience then mccord allows him to give an opinion we didn't get that are in this case well that's true your honor and i guess we got to the point that the testimony that there was the judge didn't consider that transcript said that officers none of the officers one had any training in an accident reconstruction been any measurements doesn't that really go to the weight mr buyer their testimony as far as i noticed in one of your briefs you argued that because the expert doesn't that really go to the weight of the testimony you know really two things that they just want to always get amused about the coefficient of friction a very expert we've taken you know they used to have that we'll always want to see that will they keep in their trunk and put it on the pavement in drag but judge you still have to have some kind of basis to give an opinion and i don't mind him given  the fact with this case is it's how this accident happened word happen and none of the police officers i'm going to your case they could be should be allowed to could be allowed to testify hey i ride one car was here one car was the point of still has the burden to put some kind of evidence as to how the accident happened before now doesn't doesn't the personal observations of you know they describe i think all the officers state the deceased that he saw the vehicle pull up in front of him and then he mistakenly hit the accelerator and not break him in his car disintegrated after it  hood's how is that not a question for that to survive summary judgment i'm having a hard time understanding how those cabin ation of statements if we obviously we have to agree that there is some test more there was no skidmarks but judge that's just circumstance that doesn't prove that he broke or did he applied the brakes or didn't apply the brakes we have anti skid brakes you know that there's all kinds of questions i could come up with in with experts or even the plaintiffs expert as to why there were no skidmarks we all had cases i mean with the new the new anti braking anti skid they have since our presence of skid marks in today's world is not necessarily indicate one where the other or it was breaking or no breaking because of the way then christ did work and i was questions all for the expert i mean that's good cross  but we still have to get past the st step of having to have some evidence as to how the accident happened even cross examination about whether or not there are breaks or no breaks or how we still have to have something the point of still has the burden of putting something in with a miss will testimony that the accident happened or how it happened i guess that in this kind of going back to judge marbury question there's some question my client's truck is they said disintegrate it's a lack of better word there was damage to the knob you know but i guess it's kind of a circular argument when we still have to get back to the point is to we know that there was both vehicles had an accident it was on that highway one person was on one road reform one person was another row but two had happened afterwards and that's kind of the circumstantial evidence in one of the case i think that majestic that i cited you know it talks about you can allow circumstantial evidence to prove the case but you can't allow circumstantial evidence to go forward if there's more than one if you answer just start paresis questions which were very specific as to why can't the admissions come in i e saying an admission by your client is circumstantial evidence because testimony even admitting all the statements by either party at the same as to how the accident happened what was going on what was the plaintiff did he stop in the row did he pull you know did he start to get in one line or would be other so judge i'm trying to answer question even assuming all those statements were admissible it's still circumstantial as to how the accident happened  increasing his speed right he's increasing his speed and then the expert is going to give an opinion that that increase in speed line of the the vehicle whether it was stationary are not  pulled on of the street i was moving down the road for fifteen to seventeen seconds and reach the speed of what he thought when all this and i was flying through the air after being hit from the rear couple that with the statement for new york  to see who saw the vehicle who accelerated accidentally instead of hitting the brake and then his cart is integrated i don't think there's it in my i have a very hard time figuring out how that's not an accident that occurred st of all and secondly who's at fault for that accident i think that's a real you know easy the determination to make if we make the assumption that  no statements from coming in boy that seems like a question of fact for the jury to decide and not a motion for summary judgment judge i don't want to concede went and it's always thought when i read that opinion it's kind of ironic that the gentleman that took the examination attorney allman is now deceased to win the case went and he and i talked about that case many times before but and you asked the question relaxed rules about using discovery depositions witness case i mean back to the dead man's act i have no way to rebut anything had it i mean anything that that is seen told the police officer i soon were some in the police correct in stating what was said and i think that's what one of the things about the dead man's active kind of prevent someone from making a statement remain a statement of a deceased person without the opportunity to allow the other don't you know that's another part about it we're having someone that is telling us what a deceased person said at the scene of accident when there were no witnesses to invoke persons are deceased but  and you have more than one officer seems to have heard the same statement so it's not like it's a one on one credibility tests your t your tipping your hand to justice gates well i i am very interested in something you just said which is if we decide the question on admissibility we don't need to get to the circumstantial evidence issue right can you tell me what you mean by that would you judge if if the statements of the statements of the two scenes at the scene or not if you find that the dead men that prevents either one of those you don't even know me those are the two statements of the circumstantial evidence that since we don't know exactly how the accident happened that it's all her out ruled out we don't have the statements that we talked about earlier and beginning this whole presentation today that each of these two persons made a statement i think judge roberts said about hey you know i got hit in the rear you know next to no i was in the ditch as you pointed out my client says hey i hit the gas instead of the brake so if we get in you know i saw him pull out he i pulled out things that nature if we get rid of those statements there's nothing left except that we have two cars that were i think would you say judge our point seven miles apart from each other after the impact so i think and that's and that's what i meant by that you know what you still have  you would still have the expert issue because as you've pointed out you still have to show causation correct so even though you have these statements which  i guess i disagree with you i think there's still a circumstantial element in the case well judge and i guess you and thank you for pointing that out to me and i and i guess when i made that i guess it would make it going to go back and say if we don't like those statements and we still we still have a circumstantial evidence i know i think maybe you don't have as many circumstantial statements how's that perfect i mean i really think that you still have a circumstantial potentially a circumstantial issue because of causation right right and that would that would go to the experts i guess about these cops in every place officers test morning experts you know the tips worst case and and i think if he in the plane if uses that says that's why these boys obviously do it and i realize this tip words case in th where if you had an eyewitness to a car crash you could have a reconstruction expert and then they changed it augustine versus bully in both those cases they can't even talk about it but in the tips were case i noted that the court that was an issue not necessary whether or not in this really or not meant the court finally ruled that that place officer testified didn't contradict any of the eyewitnesses and it was on a in the court ruled in that is police officers and i think we're back to your st question yes a police officer intensify what he or she observed but when you're start talking about points of impact causation and be the way they come apply physics and evidence to it it could be a totally different thing and that's my point with these police officers you know if they can say what they observed that since the cars weren't there or they were moved in down the road i think well u this police officer testimony i agree with you is it's kind of been a blurry area but i think that's for the trout court to determine but mr leonard why don't you proceed with your circumstantial evidence those would be considered direct evidence as would the excited utterance of mr hood describing how the accident occurred and then the question of the expert  testimony that's not circumstantial evidence but that is direct evidence although the opinion may be based on circumstances that are made known to the expert he still has expert as an expert he still providing direct evidence for the jury's benefit so even if i were to concede the mr liar is correct with respect to the two police officers opinions troopers kimball and raf that those should not be considered by the court which i do not concede but even if i were to concede that we still have the expert testimony of mr gorky yeah accident reconstructionist and he's he can give his opinion the cake right that's correct i did not mean to say if you interpreted my statement as indicating that neither of the police officers could testify that's not my point they both can certainly testify as to the facts of the circumstances that what and then with respect to the dead man's act none of those other witnesses are are barred by the dead man's act because they're not interested in this in this litigation and so they can testify but what i would get to briefly here mr blair i think try to give us a little bit of a red herring there on the skid marks with the automatic braking systems and what not that's not the skid mark that might determine the answer what determines the answer is were there skid marks from mr hood's vehicle after it was struck in a standing position his testimony her statement was that he was moving forty to forty five miles an hour had he been stationary whether mr hampton braked or not when he collided with mr hood's rear end of his truck that would have caused his truck to leave skid marks and there were none so that's and then additionally that wasn't raised in the br down the road for points miles and caused i doubt but there to clarify or to follow up with justice cases that question there there's no evidence as to what caused the now there are even where the couch the last thing i would like to say is that it will quickly learn the burden of production i think we have in the closing portion of our brief we referred to the case of triple her development versus go through apartments dealing with the burden of production we have met our burden of production with what we have presented in the trial court and so you're on mr blair s from mr blair side they didn't meet their burden of production with respect to their motion for summary judgment nor did they do sufficient to overcome the burden of production we did me with our respect to our motion and i hope i'm not supporting mr wire in correctly but i think you know it in his argument today that if you allow these statements into evidence you have nothing to rebut them dead man's act so for either side it becomes a dilemma as to when you weigh your position so we understand i think we on the court understand  issue and since time is up we'll have to and in this case but we'll take it under advisement we'll give you each fourteen days as previously ordered by the court and that will conclude the