[00:00:00] Speaker 04:
Good morning.

[00:00:01] Speaker 04:
We have one case before us this morning on Zoom and it is 23-6136, Council for Appellant, if you would make your appearance and you can you feel free to proceed.

[00:00:16] Speaker 03:
Thank you, Your Honor.

[00:00:17] Speaker 03:
This is Samuel Hodds on behalf of Plaintiff Appellant, Tyler Hurley.

[00:00:22] Speaker 03:
May please the court and Chief Judge Holmes and Judges Rossman and Ebel.

[00:00:28] Speaker 03:
Plaintiff would respectfully reserve 3 minutes for rebuttal.

[00:00:33] Speaker 03:
A gun is not supposed to discharge when secured in its holster without the user touching the trigger, but the P320 does.

[00:00:42] Speaker 03:
Time and time again.

[00:00:43] Speaker 03:
and this is happening to responsible safety-minded gun owners and law enforcement personnel across the country.

[00:00:50] Speaker 03:
And it happened to my client on February 2nd of 2018 at approximately 7 a.m.

[00:00:58] Speaker 03:
Tyler Herman's P320 discharged into his leg without his touching the trigger.

[00:01:05] Speaker 03:
Plaintiff retained two experts to identify the defects in the P320 and the cause of Mr. Herman's unintended discharge.

[00:01:17] Speaker 04:
Mr. Oz, if I may interrupt you.

[00:01:20] Speaker 04:
Let me understand one thing in terms of the contours of your argument.

[00:01:25] Speaker 04:
There was an argument made regarding Mr. Herman's testimony about being taught to put a safety on as a child.

[00:01:37] Speaker 04:
And that was offered to establish or support the notion that as it relates to a manual thumb safety, if there had been one on the weapon, he would have used it.

[00:01:47] Speaker 04:
Well, Six Hour alleges that you waived that argument.

[00:01:52] Speaker 04:
In other words, that you forfeited that argument by not presenting it below and that you don't argue for plain error above here.

[00:01:59] Speaker 04:
You did not respond to that contention in your reply brief.

[00:02:05] Speaker 04:
Why have you not, by virtue of failing to respond, waived it anyway?

[00:02:13] Speaker 03:
It's part of the factual record that our experts relied upon.

[00:02:17] Speaker 03:
And so we didn't waive that argument when our experts relied upon and reviewed the testimony of Tyler Herman and can certainly rely upon his testimony that he knows that you should always have a safety on and the only time you should take the safety off is when you're ready to fire the gun.

[00:02:37] Speaker 04:
If you're saying that that fact appears in the record,

[00:02:43] Speaker 04:
in terms of appears that it was a matter that was available to your expert.

[00:02:48] Speaker 04:
That is different than you arguing it and advancing it as part of your theory for why having the absence of the thumb safety would have caused this injury.

[00:03:02] Speaker 04:
That's a different thing.

[00:03:04] Speaker 04:
I mean, you need to make the argument.

[00:03:06] Speaker 04:
So my first question is, did you make such an argument before the district court?

[00:03:12] Speaker 04:
I'll stop there.

[00:03:13] Speaker 04:
Did you make such an argument before the district court?

[00:03:17] Speaker 03:
I don't believe it appeared in our papers, Your Honor.

[00:03:21] Speaker 04:
OK.

[00:03:22] Speaker 04:
And if you didn't make that argument before the district court and you haven't claimed plain error on appeal and you haven't responded to the argument of waiver that was made by Six Hour, I'm hard pressed to understand why that isn't that isn't something that we should view as waived now.

[00:03:43] Speaker 03:
Well, Your Honor, if our experts relied upon it and it assisted them in forming their opinion that a thumb safety would have prevented this discharge,

[00:04:03] Speaker 03:
Let's assume for a second that that argument is waived.

[00:04:07] Speaker 03:
Okay.

[00:04:09] Speaker 03:
That doesn't change the fact that our experts concluded that a thumb safety would have prevented this discharge and that there is evidence on the record that supports their conclusion.

[00:04:22] Speaker 04:
Well, go ahead.

[00:04:24] Speaker 04:
I'm sorry, Judge Ross.

[00:04:25] Speaker 04:
You go ahead, Chief.

[00:04:26] Speaker 04:
Where is this evidence?

[00:04:31] Speaker 04:
That's the point.

[00:04:32] Speaker 04:
If that particular contention is waived, where is that evidence that would support the notion that Mr. Herman would have used the thumb safety?

[00:04:44] Speaker 04:
What are you talking about?

[00:04:45] Speaker 03:
It's in his deposition transcript.

[00:04:47] Speaker 04:
What evidence are you alluding to, specifically?

[00:04:53] Speaker 04:
You don't have to give me page numbers.

[00:04:55] Speaker 04:
Just tell me what facts are you talking about?

[00:04:59] Speaker 03:
The fact that Mr. Herman testified at his deposition that he was taught by his grandfather about gun safety, that he was raised with guns, that he had shot guns at a young child, he's aware of gun safety, and that his grandfather taught him that he should never take a safety off unless he's ready to fire the gun.

[00:05:21] Speaker 04:
Okay, I understand your point.

[00:05:23] Speaker 04:
So just to restate, your point is, whether you made an argument specifically on that point before the district court, Mr. Herman testified about that point in his deposition.

[00:05:35] Speaker 04:
That's your position, right?

[00:05:37] Speaker 04:
Yes, Your Honor.

[00:05:38] Speaker 04:
Okay, thank you.

[00:05:40] Speaker 01:
As I understand the two experts, they don't

[00:05:43] Speaker 01:
refer in their opinions, at least I don't recall that they did, refer specifically to that testimony about the grandfather's safety advice.

[00:05:54] Speaker 03:
They do not.

[00:05:55] Speaker 01:
And so they're really not stating that they rely on that, other than just the generic problem that we rely on the record.

[00:06:07] Speaker 01:
But we've often said that

[00:06:09] Speaker 01:
courts are not required to seek through a record to see what people do or don't rely upon, or what lawyers do or don't rely upon.

[00:06:19] Speaker 01:
I mean, if it was sufficient to say that, the expert could simply say, I rely on the record and all the facts presented and the laws that generally exist.

[00:06:26] Speaker 01:
Therefore, my opinion is the following.

[00:06:28] Speaker 01:
And we would then be put to both a factual and the job of being a factual assistant and a legal assistant for the appellant.

[00:06:37] Speaker 03:
Your honor, this all goes to the point that Sig Sauer claims, which is there's no evidence that Tyler Herman would have used a thumb safety had it been equipped on the gun.

[00:06:50] Speaker 03:
And there is evidence to that point, and not only Tyler Herman's testimony, but just common sense.

[00:06:56] Speaker 03:
If the gun is sold with a thumb safety, which every military P320 has, so every gun that the US military has that is a P320,

[00:07:09] Speaker 03:
is has a thumb safe and the P320 is sold to the general public in a less safe way than it's sold to the most trained.

[00:07:17] Speaker 01:
That just goes to whether it is a defective product or not.

[00:07:21] Speaker 01:
You have two things you have to prove for your case.

[00:07:25] Speaker 01:
One, it's a defective product.

[00:07:26] Speaker 01:
And it seems to me that was mostly what your two experts really were addressing.

[00:07:31] Speaker 01:
And then you have a separate element.

[00:07:34] Speaker 01:
Did that defect in fact cause this accident?

[00:07:39] Speaker 01:
And I just don't see that the experts address that in any particular way or specific way.

[00:07:49] Speaker 03:
Well, I agree, Your Honor, that the experts, both experts, I think it's fair to say, spend significantly greater portion of their expert reports on design defect.

[00:08:02] Speaker 03:
but there is ample support for their causation opinion.

[00:08:08] Speaker 03:
Specifically, Mr. Turtine conducted experiments and analysis on which he based his causation opinions.

[00:08:19] Speaker 03:
Those experiments consist of the following.

[00:08:21] Speaker 03:
First, he did an experiment that confirmed that the gun was a single action gun, meaning that pulling the trigger does nothing but release the striker.

[00:08:30] Speaker 03:
He next conducted an experiment to determine the trigger travel distance, meaning the distance the trigger has to go for the gun to fire, and compared that against a similar gun, a Glock 19 pistol.

[00:08:45] Speaker 03:
And he confirmed that the P320's trigger needs to travel one quarter as long, one fourth as long,

[00:08:52] Speaker 03:
as a Glock pistol.

[00:08:54] Speaker 03:
So here you have a gun that is pre-cocked and the trigger needs to travel an exceedingly short distance.

[00:09:01] Speaker 01:
And third... So here you have a gun that is arguably design defective.

[00:09:08] Speaker 03:
Correct, yeah.

[00:09:09] Speaker 01:
But you got to do more than that.

[00:09:11] Speaker 03:
And your honor, I don't disagree, but where the district court aired was they didn't consider the other evidence that our experts relied upon.

[00:09:20] Speaker 01:
You didn't point any other evidence out to the court.

[00:09:24] Speaker 01:
How many days was this trial?

[00:09:28] Speaker 01:
I'm sorry, how long was the trial?

[00:09:30] Speaker 01:
How many days long was it?

[00:09:33] Speaker 01:
There was no trial, I believe.

[00:09:35] Speaker 01:
I'm sorry, of course there was.

[00:09:36] Speaker 01:
This is on summary judgment, of course.

[00:09:38] Speaker 01:
Okay, go ahead.

[00:09:39] Speaker 03:
But it was, I would say it was estimated to be approximately a week.

[00:09:43] Speaker 03:
But regarding the evidence that the district court did not consider, two critical pieces, one of which are videos of unintended discharges that occurred exactly as Mr. Hermans did.

[00:09:56] Speaker 03:
Meaning, there is a video from 2006, police body camera video, where he's getting out of his car, his hands are visible, and his gun discharges.

[00:10:06] Speaker 03:
There's a video in Honesdale, Pennsylvania, where a police officer gets out of his car, both his hands are visible, they're not touching the gun, the gun is holstered, and it discharges in its holster.

[00:10:16] Speaker 03:
That same incident occurred in Houston, Texas.

[00:10:19] Speaker 03:
Same thing.

[00:10:20] Speaker 03:
Your Honor, I reviewed...

[00:10:23] Speaker 03:
Your honor's opinion in Roe v. FCA.

[00:10:26] Speaker 03:
In that case, the district court excluded two experts because they didn't sufficiently show that a gear shifter could not self-engage into reverse.

[00:10:40] Speaker 03:
In this case, we have evidence

[00:10:43] Speaker 03:
video evidence that shows the P320 can and does discharge in its holster without the user touching the gun.

[00:10:52] Speaker 04:
Mr. Haas, what is highlighted, though, by your argument and your response to Judge Ebell is exactly the problem that he is underscored, which is everything you're saying relates to whether this is a defective gun.

[00:11:06] Speaker 04:
It doesn't relate to whether that defect caused this specific injury.

[00:11:12] Speaker 04:
And when you were talking about Mr. Turtine's expert opinion, you were talking about things that were characteristics of the gun, not whether there was a linkage between that characteristic and this injury.

[00:11:25] Speaker 04:
Did he opine or have a theory about how this gun discharged in this case?

[00:11:33] Speaker 03:
Yes, Your Honor.

[00:11:34] Speaker 03:
And the theory is that the gun discharged because of unintended trigger actuation.

[00:11:41] Speaker 03:
There's only three ways a gun can discharge.

[00:11:43] Speaker 03:
One, it's dropped.

[00:11:44] Speaker 03:
Two, it's inadvertently contacted by a finger.

[00:11:47] Speaker 03:
And three, by foreign object.

[00:11:50] Speaker 03:
Counsel?

[00:11:50] Speaker 03:
Yes.

[00:11:51] Speaker 02:
Thank you.

[00:11:51] Speaker 02:
I'd like to ask you a specific question about the Rule 702 standard.

[00:11:56] Speaker 02:
How do you satisfy the Rule 702 standard here when the testimony of your experts

[00:12:03] Speaker 02:
has to relate to the facts of this case.

[00:12:07] Speaker 02:
I mean, it seems that you are suggesting the district court aired here because it didn't consider the other evidence that your experts relied upon, but isn't what's missing a connection between the facts of this case and the principles and methods that you contend support the causation opinion?

[00:12:30] Speaker 03:
Your honor, respectfully, I don't believe that that's missing.

[00:12:33] Speaker 03:
I believe that they could have expounded upon it more.

[00:12:36] Speaker 03:
But those issues go to weight, not to admissibility.

[00:12:41] Speaker 03:
We have a similar discharge here as to eight other incidents that we have on video.

[00:12:48] Speaker 03:
And our experts identified what makes this gun uniquely susceptible to unintended discharge, what makes it more dangerous than any other gun.

[00:12:56] Speaker 03:
I respectfully reserve the remaining two minutes and 30 seconds for reporting.

[00:13:04] Speaker 04:
All right.

[00:13:10] Speaker 04:
Ms.

[00:13:11] Speaker 04:
Anderson, we'll hear from you now.

[00:13:15] Speaker 00:
Thank you, Your Honors.

[00:13:16] Speaker 00:
May I please support?

[00:13:18] Speaker 00:
An expert cannot reliably opine on the cause of an accident.

[00:13:25] Speaker 00:
if they have not looked at the circumstances of the accident.

[00:13:31] Speaker 00:
In the underlying briefing that the district court looked at on the Daubert motions and the summary judgment motion, Appellant argued that their first expert, Mr. Turtine, was going to testify simply on defect and that Dr. Vigilante would testify on causation.

[00:13:49] Speaker 00:
And I think as

[00:13:51] Speaker 00:
As has been reflected so far in the argument this morning.

[00:13:53] Speaker 00:
It's clear that Mr 13 did not talk about the circumstances of the accident and in fact said he did not care about what happened.

[00:14:03] Speaker 01:
Did he say?

[00:14:04] Speaker 01:
Did the Council for Herman say that?

[00:14:08] Speaker 01:
13 was only testifying about defect and vigilante was testifying about causation, or did they offer both experts for

[00:14:21] Speaker 01:
for multiple reasons, but at least both of them for causation.

[00:14:26] Speaker 00:
It was in their response to the summary judgment motion in the underlying court that they made the argument that first that Mr. Tertine was going to talk about the defect and that

[00:14:42] Speaker 00:
And then they said, after Mr. Tertine testifies about the P320's design defects, plaintiffs will call Dr. Vigilante to testify that those design defects caused plaintiff's unintended discharge.

[00:14:53] Speaker 00:
That was on page 18 of their response to the summary judgment motion.

[00:14:58] Speaker 01:
All right.

[00:14:58] Speaker 01:
So the plaintiff was actually representing that the only causation expert they were offering was Vigilante.

[00:15:05] Speaker 01:
Would you say that's correct?

[00:15:07] Speaker 00:
I would say that's correct based on the argument in the underlying briefing.

[00:15:11] Speaker 00:
Mr. Tertine certainly offered some opinions about causation in his report, but in the briefing and the underlying argument to the court, it seemed as though plaintiffs' appellants were conceding the fact that Mr. Tertine, his opinions really related to design defect.

[00:15:31] Speaker 00:
But even going beyond that to go to causation, we specifically asked him in his deposition

[00:15:36] Speaker 00:
Does it matter to you the facts of the accident?

[00:15:38] Speaker 00:
And he said no.

[00:15:40] Speaker 00:
And when asked multiple times what the basis of his opinion was as to whether the lack of a tab trigger would have caused this accident, he said it was common sense.

[00:15:52] Speaker 00:
And then when further pressed, just said you have to have some sort of manual safety on a single action gun.

[00:15:58] Speaker 00:
And that was the entirety of the basis for him saying that there should be, you know, that there was a defect here was simply, it's a single action gun.

[00:16:07] Speaker 00:
It needs to have an external safety.

[00:16:09] Speaker 00:
And it's common sense that an external safety will prevent an accidental discharge.

[00:16:13] Speaker 00:
And because it was an accidental discharge, therefore the lack of these external safeties caused the accident.

[00:16:19] Speaker 00:
It's a very circular and general causation opinion that is divorced entirely

[00:16:26] Speaker 00:
from the facts of the actual case.

[00:16:30] Speaker 00:
Now, Mr. Tartine is the only one who even looked at the subject pistol.

[00:16:34] Speaker 00:
So now let's talk about the evidence in this case.

[00:16:36] Speaker 00:
You had the pistol and you had a holster.

[00:16:39] Speaker 00:
Neither expert looked at the holster.

[00:16:42] Speaker 00:
Neither expert looked at any evidence beyond or relied upon or considered evidence beyond Mr. Herman's

[00:16:51] Speaker 00:
own testimony.

[00:16:52] Speaker 00:
And even as to Mr. Herman's own testimony, they couldn't relay in deposition when asked which portions of that testimony they even relied upon.

[00:17:01] Speaker 00:
So to say that Mr. Herman testified to certain things and therefore the experts could have relied upon it does not mean they did rely upon it.

[00:17:09] Speaker 00:
And in fact, you know, we would posit that at the deposition, that's the time when the expert is supposed to state the basis for their opinions.

[00:17:17] Speaker 00:
And if they're not stating portions of

[00:17:20] Speaker 00:
the factual evidence in the case that they relied upon, how is the district court supposed to otherwise determine or guess as to what else they may relied upon beyond that which they testified to?

[00:17:33] Speaker 00:
So, you know, there really just was absolutely no evidence that there was that for the district court to look at to say that either one of these experts looked at causation, specific causation as to what happened here.

[00:17:48] Speaker 00:
And Dr. Vigilante,

[00:17:50] Speaker 00:
who was the expert that plaintiffs indicated would testify as to causation, did not look at the pistol.

[00:17:58] Speaker 00:
And in fact, the only pictures he even looked at of the subject pistol were two exterior photographs of the picture that he got from Mr. Tertin and put in his report.

[00:18:08] Speaker 00:
But when asked at deposition, did you look at any other pictures, he said, no, he didn't.

[00:18:13] Speaker 00:
When asked in his deposition if there was anything in the record that would support

[00:18:19] Speaker 00:
that Mr. Herman would have engaged to manual safety.

[00:18:22] Speaker 00:
He said, I don't know.

[00:18:23] Speaker 00:
I don't recall.

[00:18:24] Speaker 00:
I don't recall what was there.

[00:18:26] Speaker 00:
That's his time to tell us what he relied upon.

[00:18:28] Speaker 00:
Clearly, he did not rely upon anything in the underlying record to say that Mr. Herman would have engaged to manual safety.

[00:18:35] Speaker 00:
Mr. Herman had every opportunity to provide that information in the record.

[00:18:40] Speaker 00:
If he wasn't going to say it in his deposition, there could have been an affidavit.

[00:18:43] Speaker 00:
There could have been something provided in the underlying record for the district court

[00:18:47] Speaker 00:
that would have indicated that he would have engaged in manual safety if one had been there, but he didn't.

[00:18:54] Speaker 00:
And so there was no evidence in the underlying record for the court to make that determination.

[00:18:58] Speaker 00:
And then when it came to the tabbed trigger, let's just start with everybody agrees, all of the experts agreed that the trigger was pulled.

[00:19:09] Speaker 00:
And a gun is designed to discharge when the trigger is

[00:19:14] Speaker 00:
And for plaintiffs to assert that a blade in a trigger will prevent a discharge under certain circumstances, you certainly need to at least try to investigate the circumstances of what caused the trigger to be pulled in this case.

[00:19:32] Speaker 00:
It's the plaintiff's experts, the appellant's experts' complete failure to even try to investigate the underlying circumstances of this case to determine where the trigger was pulled, how the trigger was pulled, what had an opportunity to pull the trigger, to look at the holster which had evidence of the location of the gun in relation to where the trigger was, to the spent shell casing found on the bed.

[00:19:55] Speaker 00:
There was a lot of evidence the experts could have looked at and made that

[00:20:00] Speaker 00:
fact-specific investigation to support their opinions.

[00:20:05] Speaker 00:
And they didn't do it.

[00:20:06] Speaker 00:
They chose not to.

[00:20:08] Speaker 00:
And so, as a result, their opinions were completely unreliable.

[00:20:12] Speaker 00:
And this opinion in particular came down in September 2023.

[00:20:16] Speaker 00:
This year, the standards even stricter.

[00:20:19] Speaker 04:
This, this, this, you mean the district court's opinion?

[00:20:23] Speaker 00:
The district court's opinion.

[00:20:24] Speaker 04:
Okay, okay.

[00:20:25] Speaker 00:
Came down before the amendments to the rule.

[00:20:28] Speaker 00:
And the amendments to the rule made it very clear early this year that the standards should be strict.

[00:20:37] Speaker 00:
This is not a question of, you know, if there's any question on the underlying methodology, then it needs to go to a jury as a fact finder.

[00:20:48] Speaker 00:
The amendment said no, the Don movement has the burden of showing by a preponderance of the evidence that the

[00:20:58] Speaker 00:
data relied upon is reliable that the information fits the case and how experts could go in.

[00:21:07] Speaker 02:
Go ahead.

[00:21:08] Speaker 02:
Your position that that Oklahoma law has a general requirement that that expert testimony is needed for causation in this kind of case.

[00:21:17] Speaker 02:
In other words, that without as a matter of law that you can't satisfy your burden under Oklahoma law and causation without expert evidence.

[00:21:26] Speaker 00:
Yes, and we've cited testimony to that.

[00:21:28] Speaker 00:
Now, there are limited circumstances where you wouldn't need expert testimony.

[00:21:32] Speaker 00:
And that's if a layperson, if it wasn't a complicated issue.

[00:21:37] Speaker 00:
But generally, when it's a product liability case, the law in Oklahoma is that you need expert testimony.

[00:21:44] Speaker 00:
And the courts have, the Oklahoma courts have repeatedly

[00:21:49] Speaker 00:
granted summary judgment to manufacturers when their experts have been precluded.

[00:21:54] Speaker 01:
Let me try to get clarification on that.

[00:21:58] Speaker 01:
The question was whether Oklahoma law requires an expert and you said, well, there's repeated cases where they found that it was necessary.

[00:22:10] Speaker 01:
making it sound like it's more of a factual case and that they usually tend to require it.

[00:22:15] Speaker 01:
But does Oklahoma have a per se blanket rule that on product liability cases you have to have an expert on causation or is that a case by case decision in Oklahoma law?

[00:22:28] Speaker 00:
Under Oklahoma law it is not quite a per se requirement.

[00:22:34] Speaker 00:
It is a general rule that you need to have expert testimony on causation

[00:22:41] Speaker 01:
On the facts, the cases that have come before Oklahoma courts, they have generally said that you have to have an expert.

[00:22:49] Speaker 00:
Yes.

[00:22:49] Speaker 00:
They have said expert testimony is required because the product needs to have the expert to tell the jury, to give the jury the facts on which to opine.

[00:23:02] Speaker 00:
And here, in particular, while we anticipate that plaintiff appellant will say,

[00:23:11] Speaker 00:
that this was simple, you don't need it for causation.

[00:23:13] Speaker 00:
You don't need an expert for causation because a manual safety, if properly engaged, would prevent a discharge.

[00:23:22] Speaker 00:
And that the tab trigger would probably prevent a discharge.

[00:23:28] Speaker 00:
That's what the plaintiff's expert said.

[00:23:30] Speaker 00:
However, that opinion is reliant upon the internal functioning of the pistol.

[00:23:38] Speaker 00:
And in fact, it's been plaintiffs experts position that the ordinary consumer wouldn't understand those issues wouldn't understand and looking at this pistol that it is a single action.

[00:23:51] Speaker 02:
Didn't the district court say that expert testimony may not be required on the on the specific question of whether an engaged manual thumb safety would have prevented.

[00:24:01] Speaker 02:
the accident here.

[00:24:02] Speaker 02:
I thought the district court said, and you acknowledged in your brief that the jury would not need expert testimony on that point.

[00:24:10] Speaker 00:
that a properly engaged manual safety, no, not on that point on causation, on defect for sure, but not on causation.

[00:24:17] Speaker 02:
So why can't that portion, why can't that go to the jury?

[00:24:22] Speaker 02:
If you agree and the district court found that a jury would not need an expert to speak to that particular manual thumb safety issue, why can't it go to the jury without expert testimony on that question?

[00:24:38] Speaker 00:
the causation on the specific causation on the manual safety.

[00:24:42] Speaker 00:
That is because there's no evidence in the record and the court correctly stated that there was no evidence on the record on which a jury could infer even taking all of the inferences in favor of the plaintiff that were in the record on the arguments.

[00:24:55] Speaker 02:
What about his deposition testimony about his understanding about gun safety as a child that you always put the safety on and why can't that

[00:25:04] Speaker 02:
Why can't we draw a reasonable inference, or at least why can't that deposition testimony permit the inference?

[00:25:10] Speaker 00:
The deposition testimony can't permit the inference because, one, it's been waved because it wasn't relied upon in the underlying arguments.

[00:25:19] Speaker 00:
And so it was waved.

[00:25:21] Speaker 00:
Nobody ever brought that up.

[00:25:23] Speaker 00:
And so you can't just have that inference.

[00:25:26] Speaker 02:
Well, let's assume for a minute that it wasn't waived or that we're not going to excuse the waiver or something.

[00:25:32] Speaker 02:
Let's just assume.

[00:25:33] Speaker 02:
Why doesn't that testimony in and of itself permit the inference?

[00:25:37] Speaker 00:
That testimony in and of itself doesn't permit the inference, as the underlying court stated, because they're

[00:25:43] Speaker 00:
The as the court stated, it came out as an equal inference because the plaintiff also had options to purchase a new yet options to purchase a manual safety.

[00:25:51] Speaker 00:
He didn't want a manual safety.

[00:25:52] Speaker 00:
He wasn't looking to get a manual safety.

[00:25:55] Speaker 00:
So what the court ended up finding was the inferences Came out to equal.

[00:26:00] Speaker 00:
It didn't tip the scales to show that there was a genuine issue of fact that a jury could find based on that evidence that

[00:26:07] Speaker 00:
uh, that plaintiff would have had a manual safety engaged and therefore that would have prevented the incident here.

[00:26:12] Speaker 04:
And, and, and Ms.

[00:26:13] Speaker 04:
Denison, let me be clear on one point.

[00:26:15] Speaker 04:
You, you're, you're not conceding, uh, well, let me, you weren't conceding the issue that was, uh, just being discussed as it relates to causation, right?

[00:26:25] Speaker 04:
That it was common sense that, that the absence of, of a man, that you needed to have a manual safety and the absence of manual safety would cause the gun to go off, right?

[00:26:36] Speaker 00:
Correct, correct.

[00:26:38] Speaker 00:
So, you know, we're not so that, you know, we still posit that there's no need for the manual safety.

[00:26:44] Speaker 00:
And there's definitely need expert testimony to say that there was the original defect and that not having a manual safety is a defect.

[00:26:51] Speaker 00:
You absolutely need expert testimony to say that a manual say that the lack of a manual safety is a defect here.

[00:26:59] Speaker 00:
And then you also need

[00:27:01] Speaker 00:
to have the testimony that the lack of a manual safety caused the unintentional discharge.

[00:27:07] Speaker 04:
I get that, but Judge Rossman alluded to earlier some reference to you in your briefing, you accepting as a matter of common sense that the absence of a manual safety would allow for the gun to go off, right?

[00:27:21] Speaker 00:
Oh, no, we're not conceding that.

[00:27:22] Speaker 00:
No, let me be very clear.

[00:27:24] Speaker 00:
The gun had the trigger pulled.

[00:27:26] Speaker 00:
That's what caused the gun to go off.

[00:27:29] Speaker 00:
What we agree is that a properly functioning manual safety that was engaged would prevent a trigger pull.

[00:27:35] Speaker 00:
That's just, I mean, that's how it works.

[00:27:37] Speaker 00:
But we are not conceding that this gun, that there was a defect in this gun because it did not have a manual safety.

[00:27:45] Speaker 00:
That requires expert testimony.

[00:27:47] Speaker 04:
And more to the point, you aren't conceding as a matter of any issue related to the causation associated with the manual safety, right?

[00:27:55] Speaker 00:
Correct, correct.

[00:27:57] Speaker 00:
There is absolutely no evidence that a manual safety would have been engaged here and there's nothing that a reasonable fact finder could use to conclude that a manual safety would have been engaged in this case.

[00:28:09] Speaker 00:
And the plaintiff's experts didn't do any of that work.

[00:28:15] Speaker 00:
So there's just simply nothing in the record in the underlying record to show that a tab trigger or manual safety would have prevented this incident and the court properly exercised its discretion.

[00:28:23] Speaker 00:
Thank you very much, Your Honors.

[00:28:26] Speaker 04:
Thank you, counsel.

[00:28:28] Speaker 04:
Mr. Haas.

[00:28:30] Speaker 03:
Thank you.

[00:28:31] Speaker 03:
Even if this court agrees with the district court and excludes plaintiffs' experts' causation opinions, the district court did not exclude their design defect opinions.

[00:28:43] Speaker 03:
Summary judgment was improperly granted in favor of six-hour because as six-hour just conceded, there's no expert testimony that is needed for causation as it relates to the thumb safety.

[00:28:55] Speaker 03:
People can use their common sense, and jurors can know that if the thumb safety is actively engaged, it would have prevented this unintended discharge.

[00:29:03] Speaker 01:
But that if is a critical question.

[00:29:06] Speaker 01:
And so the issue then.

[00:29:08] Speaker 01:
And so if we're absolutely agnostic on the record, whether it was properly engaged or not, I don't see how you can come up with more than probable, more than 50%.

[00:29:21] Speaker 03:
And you're right, Your Honor, if there was no testimony about it,

[00:29:26] Speaker 03:
then it's fair to say the record is agnostic.

[00:29:29] Speaker 03:
But there is testimony about it.

[00:29:31] Speaker 03:
There's testimony in the record that Mr. Herman knew because he grew up with guns.

[00:29:36] Speaker 03:
He shot his grandfather's .22 rifle and pistol, and his grandfather taught him that you should always engage in manual safety until you're ready to fire.

[00:29:44] Speaker 03:
And there's no evidence in the record that in any way suggests that he would not have activated a manual safety if it was featured on the gun.

[00:29:52] Speaker 04:
And well, it wasn't featured on the gun because he didn't buy a gun with the manual safety.

[00:29:57] Speaker 04:
I mean, there's evidence in the record that he knew that six hour made a weapon with the manual safety and he chose not to buy it.

[00:30:04] Speaker 04:
So, I mean, when, you know, he had his grandfather's advice, but when push came to shove, he didn't buy that weapon.

[00:30:11] Speaker 03:
But your honor, it should have never been offered on the market.

[00:30:14] Speaker 04:
That goes to the defect issue.

[00:30:16] Speaker 04:
That does not go to what he would have done with the gun if he had it.

[00:30:21] Speaker 04:
And the critical decision is, did he really want a manual safety from which we could infer that if he had the manual safety, along with his grandfather's advice, he would have used it.

[00:30:32] Speaker 04:
But we don't have that, right?

[00:30:34] Speaker 03:
But we do have design defect opinions that are admissible that say this gun should never be offered to the public because it is unsafe based upon its short trigger travel distance, its single action design, and its lack of any manual safety.

[00:30:49] Speaker 03:
If SIG wants to offer this gun, they need to offer it to the public the same way they offer it to the military, which is every single gun has a manual safety.

[00:30:58] Speaker 03:
And those opinions, the court did not strike.

[00:31:00] Speaker 04:
But the problem is that we go back to your colloquy with Judge Ebell.

[00:31:05] Speaker 04:
I mean, design defect is not enough.

[00:31:08] Speaker 04:
You've got to show causation.

[00:31:09] Speaker 04:
And if you don't have anything on that, then the rest becomes irrelevant.

[00:31:14] Speaker 04:
I see that I'm out of time.

[00:31:15] Speaker 04:
You can respond if you have a short response to that.

[00:31:18] Speaker 04:
Please go ahead.

[00:31:19] Speaker 03:
Your honor, with respect to causation, the causation related to whether or not the gun, whether or not a thumb safety would have prevented this incident can be decided by a jury without expert testimony.

[00:31:34] Speaker 03:
And for that reason, even if the expert's opinions as to causation are stricken, the jury can still decide this case based upon common sense causation determination.

[00:31:51] Speaker 04:
All right.

[00:31:51] Speaker 04:
Any further questions from my colleagues?

[00:31:54] Speaker 01:
No.

[00:31:56] Speaker 04:
All right.

[00:31:57] Speaker 04:
Then thank you very much for your fine arguments.

[00:31:59] Speaker 04:
Council case is submitted.

[00:32:00] Speaker 04:
If you will exit, please.