first it excluded evidence that was directly relevant to the first appeal in this case and that left no doubt about the scientific validity of homeowners key expert dr starks yes methodology that ruling allowed  to present facts and arguments to the jury that simply were not true in two thousand and fifteen second and compounding that error the court permit it ask you ems kiewit expert witness dr layton to confuse the jury with pure  justified and i guess i'd love to hear your response to that because it seemed to me you're asking us with really not much other than speculation to conclude that but for this evidence or error that that essentially non detect means that they were below the action below the action with so we don't know that it's actually zero and one of the wells up there did detect positive for people who are trying to this is all in context of judgment work for it's question which is if they stuff was still coming here through other sources and the evidence in the record is that this the stuff that came before us became the so important was fourteen percent of the stuff that came after if you look where yeah so let me tell you where that hundred twenty three and one nine hundred thirty nine the amount fuck fuck so hated from twenty five hundred to six thousand tons per year and then we get to nine hundred forty at sixteen thousand nine hundred forty two at seventy two thousand so so overall the amounts that are coming fertilizer is more than a trivial or negligible source of the contamination in promote its wealth so even if they thought that fourteen percent of this came from before even more that wouldn't that wouldn't satisfy satisfy so he he issues he was testifying to were directly relevant to the first appeal here and they really bore all of the hallmarks of what this court has said makes expert testimony reliable they were  go to that since your time is ticking except all of that is true and i really appreciate that the status of the science changed pretty dramatically in this window that we're talking about and think you made a really good showing of that so henri mand i was struck that at the i think it's the  hearing the judge says ok you know you got it right up to the brink of trial and then we had this interlude of you know quite a period of time to go to the ninth circuit and come back and really go to trial and i think the city upon want to say yes we can be ready and you know about six months which is a very short s me as a very short period of time so what about that so sure so that that first hearing on january twelfth after the man from this court the very first thing that kimono says after good morning is a lot has happened in three years we need to update these reports this was before a trial date was set and the judge says put it in writing i'm going to set my trial date and then we really need to update these reports now one thing to understand is this issue on appeal that you think that the pretrial scheduling order was unreasonable you know so so we're not saying it's unreasonable because i'm a context of the way this judge runs the trial if you look at the first trial date before the appeal all expert testimony fourteen a rich original experts  nine rebuttal expert reports including three new ones were all done within ninety days before the trial and here we're asking two update our our expert reports experts that have already been disclosed and if you look at rule twenty six it set sort of a for that at thirty days before trial so there was there was plenty of time in the context of the way this judge runs a trial to do these updates before the june second trial date this is abuse of discretion standard right sure yes what's your best argument on the start the best argument so we have we have two one here played the wrong that the judge apply the wrong standard because he said that i had not shown that the evidence would  update couldn't have been done within the discovery deadlines the court points to two things one the court says it's not relevant well i think it's pretty clear that it's relevant it was the central topic of the first appeal  just on the diligence point why didn't you as your opponents argue now just attach as an exhibit to your motion the updated reports and say to the judge see this isn't that it's not going to cause all hell break loose this is all we've done sure and it would have been good if we had been able to do that but the judge didn't fault us for that as q m at the time didn't fought us sort of did he said you've got you've had four years to get ready there's no excuse for not being ready and i'm paraphrasing kind of  excuse for not being ready you've had several years to get it sure and the thing is that the mandate had just come down in december so i don't think i'm hearing was in doesn't was it jack it was december to early mid january i think the unstated response in the record when the judge said you've had this time is that nobody was doing anything while you're waiting for the night circuit to rule because if you had not prevailed there you would have been back sure and there was there was a search stage and all that but i think the really important thing here is fight was more back up because generally better accepted but his theory dr strictures theory first time around was there's we can do this with the isotopes we can fingerprint our pinpoint where this stuff came from right to that opinion hadn't changed you know his opinion part because because of these rulings ask you am was able their main expert talked to our vein i was able to say my two creaky criticisms are are no other labs nobody else is doing this and not a big enough database on bout his i think it was his testimony but it was certainly one of their experts who testified that had the source of the contamination been the orchards we would have expected to see perc in these areas and there was none you know you had an expert who disagreed that that was a valid it's not getting reported you can ask did you put any she has asked for a different special verdict form that might have allowed you to isolate the the jury's reasoning on this point i don't believe that we did i'd like to make sure to reserve a little bit you may please the court our good lord smith i represent the defend then the jury did find that defendant was not the cause of the city's injury near its a t p wells dr admitted at trial that his isotope technique was incapable of age dating the art of comma perchlorate and capable of separating whether it came from his name was henry pepper and he authenticated the two thousand and seven consumer confidence report that report admitted into evidence as forty three twenty four stated that the city had conducted an investigation as to the source of the park or it near the a p wells and that it had concluded that the source was quote sodium nitrate fertilizer is exactly what we said by the nineteen twenty s heber by the germans won the nobel prize for creating synthetic nitrates that's what got them through world war one as far as they did but after nitrate uses collapses there are synthetic sources that cost less than half the amount so that chart is totally misleading in terms of chile because it was the only source it was is a magnificent resource it was the only one and it was a principal in port import is very important to that country but that's all there was and that's where bombs were made from and gunpowder was made from it was a source of nitrate ubiquitous it industry so yes there was a lot of evidence now ted back can testify this expert looking at the california culture records that there were a lot of dealers and sodium nitrate even in pomona intel one nine hundred twenty and then they stopped so there is abundant evidence of all time use i think that the henry pepper was about just before you move on you know your opponents argument is that under the substantial factor test they don't have to show that the majority of the perk found in the including a chilean fertilise that that was exclusively for your client right there was there was requisition by the united states government of quite a bit for the war effort not distributed by my client destructive but by the government according to war board priorities in the number of war bore priority was for vegetables not citrus and that was the expert testimony at ted back in relying upon government records so that would explain why citrus didn't get it but however much was used into larry county or san francisco is not relevant to whether sodium nitrate was used then at that time in pomona when henry pepper writes to all the citizens saying it wasn't use for more than seventy five years it was used more than seventy five years ago he had a basis for that there are a lot of growers and in public a lot of people retired there and the thirty's not so much but the forty's and fifty's certainly are within living memory and people who lived on farms know what they use for fertilizer and not one of those people called that gives inland empire growers they weren't using sodium nitrate he says they use manure sodium nitrate was way too expensive and it wasn't particularly good for citrus because they had sodium in the soil salt so there was a lot of evidence that the jury could use but i think the teardrop tells a big story here when the water is coming in from the orchards down word to the contaminated area and that water is safe to drink it is below six parts per million i'm sorry per billion a billion one billion there's a very small  amount it is measurable they have the techniques but they say this is drinking water quality by the logic it is impossible that drinking water quality water could be causing enhanced contamination at the will felt it could not be those or should say been tested clean for twenty years sodium nitrate had it been used in the thirty's forty's and fift i've gotten through it would be contaminating we know that because we craft their expert says there's a long life there's a long trail here in the trail is i think you've you've exhausted there wasn't any and indeed what did the judge do in his response well the judge didn't have an yeah i think the teachings of this court knowing what  dahlberg hearing never did never did why isn't that error i think it's not an error because he said both then and at the start of the twenty fifteen trial that my tentative and i want to hear the evidence as a comes in and i'll hear your motion again so when i think when i put on the witness and put on his qualifications talking about dr levy that dr layton ok and then i asked and then i asked him you know what's the basis of your you know opinions that you're criticizing the failure to consider alternative causation opinions he says it's based upon e p a in d t s c guidance that provides that this is how you do an environmental investigation i've been doing this for over twenty years and i says ok based upon this what is do  an opinion yes i do and said my opinion is i don't think star shoot at an incompetent environmental investigation of alternative causes you saying that was a d'albert hearing i think that's where counsel stands up and says objection so if there was an error in not holding an albert hearing it was the way to not making in that junction that's interesting because the statement itself says denied you're saying up the top some are some aren't but they they could interpret it as i was an attorney with with and with the language the district judge uses tonight what you're saying is if you look back at it now in hindsight months later we can say well he wasn't denying he i think what is there in there with a district judge says said i'm holding that this person can testify i has and i have now has adopted hearing nothing i'm sorry your honor when did here i'm talking waiver i think there was no preservation of objection under one of three because his testimony he says it raised to the district judge is just just sort of making a rgument of why we can't reverse on this basis now we we had there been an objection your honor had there had been a request to have a daubert hearing another second request well the motion didn't request the daubert hearing it objected up and down for this judge showed a pension for anybody who wanted to raise an objection please follow motion and we'll have there was no request for a doubt for a hearing and had there been a doctorate hearing you would have had the same evidence that you have before you now in under bare open you may make this decision now whether he was qualified and whether or not we were reminded let the trial judge do it well bearing gives you that authority and saves us a lot of time to do that but i want to talk about i want to defend the judge's decision not to change the scheduling order and not tell let's move to another question and then you can do that  i'm a little concerned about the situation as i see it there was there was a criticism of the principle doctor which is named porno there's criticism that he didn't have sufficient data there was a moment yes so there's a long time big gap of time during that time all the sudden there's some things that we're criticized about as now there's there's something there that we can say that is there so at the very beginning when this case is comes back from our court which gives the district court jurisdiction it's raised then that that they're now he's now in a position to new evidence and yet he's not allowed to he's not allowed to use that he has use of five year old report even though the evidence is now there that the five year old report has been verified i would tell them very well what is fair about that ok what was not fair your honor was when he says he has all this some published data and he has studies that we don't have and they don't give it to us they make a motion and they ask the court for the earth the moon the stars in terms of reopening discovery percipient when this is all experts and then at the very end of the motion they say by the way strike has more data and they don't discuss what it is except for one reporting he says in stock aeration i have prepared a twenty fourteen report that the specimens my data from my twenty eleven report that's not new data read the declaration carefully he doesn't identify the source or publication of any new data and here we are in chile a in san diego and we don't know what the data is  all right but that that may be true but the judge never asked for that the judge just said make a motion he said make a motion and the motion that was main thing ok to get me on timing a motion is made and they've got one month to do it the judge sits on it for two weeks and into the reasons sufficient time the motion is very important yes the motion the introduction of the motion introductions where we usually make our best argument for the entire introduction is about the other discovery promoter once he doesn't mention starkey or doesn't mention the new data you know now we're standing here that this is the most critical data in the whole case and it deserves to overturn the verdict well if the judge district court wasn't told that in march the district talk court was only told let me in let and this is really important the articles period that's it not where they're from whether it's going to be difficult for the defense to run those down to get the end a little results behind them get the lab reports to if they're crude if they're real data but nothing that mentions but ok this is certainly clear that that this particular witness his testimony would be far better if he had now why it wasn't promptly after the case came back to them then the motion is the judge says ok file a motion he sits on it two weeks and then it and he has not told what the court just mention that this was vital to starkey that it it it removed objections that had been made them it didn't even identify where the so the district court is experience and that type of general high level proffer by an experienced lawyer is in fact raises suspicion what's this all about is this going to unravel my well of my schedule ok so so your skin you're figuring out what was in his mind but that's not in the record that what is in the record is that they came in with a motion and this was vital to their case because counsel argued at the trial of this case that there is no such evidence but we know there was evidence it just wasn't allowed to be get in get in by the district court and so you know seems to me that that there in his discretion at the time he made his decision with that they did that was presented and the data that was presented was a very tepid noncritical showing by st he did not say i need this state to make my opinion work and in that three lines that are in the beginning and there's three more lines at the end that we gave this district court judge no i  the ninth circuit opinion was all about the testimony its reliability and in particular the size of the reference database we get back to the first january twelfth the very first thing from owner says is we need to update this we need to update they say that twice and then in the in the motion it it it says exactly the update they're going to do it says we have more we have these several more peer reviews now one of the questions in this case was is this accepted by the scientific community there's there's peer reviews are really significant this court has said they're really significant for a liability they say we have many more samples from across the u s so that's exactly what has updated report reflected and it wasn't wouldn't have been a surprise to anyone what did you do to put the trial judge on notice of how important you think this is you heard opposing counsel say in retrospect you think this is you know it's taken a big proportion is your response that the judge was on notice because that was the issue on appeal so that's part of the context is that this was but but also because we said this is significant this is what we're going to show doctors said in his declaration this will deflect the criticisms that when you say he said you're not sorry doesn't councils read about two sentences from them and i think delbert issue so first of all it wasn't if you look at your two that that is a final ruling their original ruling said tentative in two thousand and eleven the two thousand i thought the judge said shortly before trial that all of of a district court's authority to always change its mind but this court's cases africa ben simon hutaree they say unless that circumstances have changed there's no real reason to expect i thought that was the officer that unless the co allow the lawyers to put on the record things that should have been argued before the jury did you at that point so your honor we want to make clear for the record that you've requested one do you or you denied it we think that this person cannot be allowed to testify i didn't see that in the record so it isn't in the record but the very first time in two thousand and eleven that the judge rules and denies this motion and live in a number three pomona says can i you know you gave this an aisle without any reasoning is the going to be a chance for further argument and the judge says i feel comfortable i've heard you've briefed this adequately i feel comfortable so i think that this judge that there was no reason for promotion that to sort of antagonize this judge by continuing to bring up an judge was not it would have i think been futile to keep to keep of objecting if i could get to the quick points i wanted to make really quickly on harmless error first i just want to say that it is ask you ems burden under a state of harmless in addition to the other points i made a e r one twenty late and says that the contamination wouldn't have hit might not have hit the wells for a lot of reasons we got to the tentative final and then i want to say on the gate keeping  daubert hearing is not required this court has drawn a very sharp line between some of the findings and no findings are says where the only reason that we can figure out that the court found the person reliable is that they were allowed to testify