my name is joseph first off and i'm appearing on behalf of plaintiff appellant the surviving children of defeating or martinez yars defendant as a common carrier and under long established california law defendant owed your markin and if they had to warn what are the considerations that i have to look at determine that your honor the california supreme court is clearly laid out the analysis the court should undergo when determining whether to carve out i realize th y laid it out so what are the what are the things what are the considerations i need to look at as i understand it there are four part test under california law would you agree so in there what are the things that i have to look at so the first step in the analysis is identifying the duty which we have done here and the next step is you look at the role and factors which consist of seven separate factors right and then a court analyzes them and determines whether those factors clearly support carving out fish an exception now the district court here only considered one of those factors foreseeability and analyze it in a vacuum well they went foreseeability because important that's what i was trying to suggest so he went so the district court went into foreseeability and after getting through foreseeability this record said the left we're on right that's correct that is the approach the district court and i guess i might because it's the most important i'm having a tough time seeing why that is error because your honor if you don't make foreseeability i don't think you're going to make any of the other well your honor first they i do believe we can establish foreseeability clearly well let's check there first ok what are we going to look for for foreseeability your honour's numerous organizations have recognized the connection between extended periods of immobility and the subsequent risk of developing d v d for example the world health organization the center for disease control the united states surgeon general defended sister company as long as well as defendant's own employees when deposed acknowledge this connection and self defense person most knowledgeable about their warnings given to the passengers acknowledges himself he said when he went on a  long trip to europe he got up and walked around himself well problem that i have with all of this is that it seems based on the evidence in the record that is unknown whether developing d can be prevented by issuing the warning you suggest well i think the medical literature acknowledges we prevent what evidence do you have i guess this is the underlying question what evidence do you have that a clear causal link between sedentary being sedentary like i am and developing d what's the best you've got i think the world health organization report as well as the surgeon general's report they all acknowledge the connection and they acknowledge that causation that's the problem the w clarification so that if that definitive enough i think it is when you look at that in combination with the further developing medical literature and it paints a clear connection and it seems as if is just one factor in causing the disease if i look at what dr carrillo said for instance he says i have no medical documentation to support the suggestion that immobility was a contributing factor in the death he said i admit i was speculating when i said that i knew the lack of emulation caused the blood clots that's what he said if i look at what dr malloch malik murmur i don't know i say it exactly malak murmur he said it's not the mobility it was caused by the heat and the period of mobility so nobody saying it causes it everybody says is just one factor in the in the test if i go to what transportation safety specialist stocker says he said d is not a prevalent or common issue or concern for motor coach passengers or any over the road drivers he said no regulatory agencies charged with protecting passengers on the public promulgated rules pertaining to d v d your honor i mean all of that worries me how i'm going to say there's a clear causal link that's why i'm keep feeding on that so i think the way the method of medical literature explains it i thought leave it the surgeon general report explains that the prolonged period of immobility is a triggering event and so when you combine that with some of these other factors such as being over the age of forty being obese being pregnant or having recently given birth that creates sort of a for lack of better term dangerous cocktail which puts you up in at this acute risk and approach and not into the specifics of this particular case because duty is to everyone and in this case we were to look at the specific facts under the breech and causation factors i guess some have been real troubles with why the district court didn't call it right the district court says the science of the v t has not yet reached the point where common carriers can foresee that passengers are in danger of developing d v d when they travel by bus any cites documents submitted by the plaintiffs centers for disease control the world health organization which is exactly as judge rowlands was just as dr malcolm are and he goes down through and when i looked at the record i had a tough time disagreeing it seems to me you're on the cusp but there's nobody saying that it causes that we're on our honor i'd also like to note that the district court took a somewhat contradictory position when the district court also noted there's no doubt in my mind the d v d can be developed in long distance travel and the district court also noted but just to say that it's can be can be developed doesn't say what the cause your honor i think that what the medical literature on the studies conclude is that there are several factors and that prolonged periods of immobility is a triggering event that can that set you off on this pa to develop this potential deadly condition and if you look in for example the defendant sister company scott rail has been warning about this for over ten years and there's the senate has actual knowledge about this they warn their own drivers about it so it's almost like this this fiction this fiction that they're operating and where they on the inside they acknowledge that they that there is this connection but when it comes in the legal proceeding they claim that knowledge and for example they well it seems to me that if i look to the test that is in scott versus chevron which is a california court of appeal test there are four to parts of that test the first is that what specific measures that you assert the defendant should have taken i think you'd meet that test second one is how financially and socially burdensome would those measures be and it seems to me the fact that there's an affiliated company that does the same thing says it can't be that burdensome record it's not the end the next is what is the nature of the harm that you can find could have prevented been prevented if the defendant had taken the measures how foreseeable is that that the harm would occur on that issue is why i'm asking the question and because i don't believe we've met that issue you may have met the first two on the arguments you're just now making but it's that last number three which i don't think you've got two and then the number four i got to compare the burden of the foreseeability in determining the duty and so there i am i'm stuck i understand your honor so the california supreme court has this defined standard for foreseeability and they define it as whatever is likely enough in the setting of modern life that a reasonably thoughtful person would take account of it in guy impact and conduct and we have evidence that the senate has already done that they were in their drivers about it they themselves know about it they're centrally hiding this information from their passengers just because if you had some information or some evidence or some medical evidence that would get the clear causal link you may be right but just because one company does one thing and one does another doesn't make it caus does it your honor i think that it's established this literature recently thoughtful company will look at this literature and say ok the world health organization the united states surgeon general the center for disease control and numerous  other thorpey have acknowledged that there is a connection here now recently thoughtful and also that we need to keep in mind that this is within the context that they owe the most duty of care this is in a general duty of care is that principle as opposed to me an ything it needs to be applied to a heightened standard was that all sounds good if we don't look at foreseeability if you say meet the most care and diligence so you've got to meet that whether it's foreseeable or not anything that comes down the pike you've got to do something about it whether it's foreseeable or not then i think your argument makes sense but if you say i have a most care and diligence but i only have to use that most most care and diligence on things that have the degree of certainty that is necessary then again the degree of certainty necessary controls whether you need the most care and diligence and again we're back to number three in the case that i talk to you about your honor i think that i mean obviously you've read the literature and i think that the literature establishes me for that level of really thoughtful person would take into account the fact that these organizations have all considered this and they've noticed this connection and also the haynes case which defendant relies on that was about ten years ago and in that case it was probably the most similar issue to the one at hand and in that case the plaintiff relied on the world health organization now it requires a little reading between the lines but the district court intimated that if that world health organization report had been around when the injury occurred honor i forgot the point i was going to make but i think that considering all this evidence a reason we thoughtful company would say look there is this connection that these major organizations the most major in the world i recognize this connection and therefore we should take this duty we should warn our customers i mean this record acknowledged  that defendants that these common carriers acknowledged this danger and that passengers don't have knowledge of this danger that is the exact situation why duty to warn exists and of course there is as you acknowledged essentially a negligible burden on the defendant there's one point i think the bears extra emphasis in something that the the district court judge noted as well i mean not only is there no case that is on point saying there's a duty to warn of the d d but even more important i think in a lot of ways is there's no federal government regulations saying there should be a warning and that's really important in this context and the reason i say that is because the transportation industry is heavily regulated when it comes to safety we have obviously the f a a for airlines but just for this client for motor coaches we have the federal motor carrier safety administration we have the national highway safety traffic and safety administration and these agencies are told there are there actual goal in what they do is to look into things to see if there's a need for know at all are there any regulations that you can cite that contain a requirement to get on any matter if there are on and airlines your honor for you know you did the seat warn and so that would make your point that there is no regulation addressing duty to warn in this case but if there that is an up regularly occurring requirement in those regulations that the point isn't well taken as well as something well the point the point i'm making is this your honor these agencies are in the in their job their function is to actually take all of the data look at all of the evidence on an issue like this d v d look at the studies and their job is to provide guidance and through their work with safety advocates health organizations they then determine whether the evidence is sufficient to rise to that level to require some type of a warning but the problem is that's why i'm not sure you understood your drones question problem is if they do that on other areas besides d they come out with any warnings that needed to be given i mean you're saying they've never said anything about the v t but they have looked at all these other places and are you saying they've also given warnings in those other places where they've looked or where they've done investigating i'm just saying your honor in light of certain aspects of a given example of one i can think off the top of my head i don't have anything you know in this i mean i'm not so sure your argument is good anyway but i'm just trying to develop but i'm trying to see what you're really trying to tell me if you're just saying if they if this was really necessary the federal government would have given a warning would have told us to give a warning and they  haven't here and they've given him in other places shall she ask was what were the other places where they gave the warning right at the end the only the only thing that we have in the record yano is something the reference to for example the cell phone  issues that we've had recently is regulations regarding and statutes and in i mean it's in the very young so close all drive have a tough time when i'm trying to figure out what california is going to do trying to say that the federal government is the control so i'm not really taken with your argument anyway but i was just trying to develop if you were going to develop well i'd get back to i mean you have a you have enough most care and diligence for save kerridge that's your duty your a common carrier you have to exercise all reasonable care to get there it seems to me that the and fact lopez would say you must do all of the human care vigilance and foresight you can reasonably do under the circumstances those are pretty high barriers and all i was saying is in order for me then to decide that i have to decide the degree of certainty that there would be that the plaintiff would suffer injury and that's where the district court modeled it sat its its decision  council says the district court was a bunch of junk because they only talked about the degree of certainty and they should have examined the rest of the factors that's why i said am come on it's the most important factor if you can't make that one you can't make any of the other so he backed off now we're on degree of certainty what do you got to say about that well ya know i agree with the comments obviously that was made earlier there has to be a sufficiency close connection between you know the failure to warn about the d v d and whether the category the negligent conduct is sufficiently likely to result and again there is no evidence medical otherwise in this record and that can be found relevant to a the actual d very travel for an extended period of time causing the v t there's no causal link and that is exactly the problem and i asked the court to look closely into the evidence that was just mentioned and was cited the world health organization report for example that was cited the reference there was again and that was ready to look closely no i think you i think you did know but just to emphasize certain things interesting this was again as to airlines airlines are a lot different than motor carriages because with airlines you are in again this was relating to intercontinental travel where you're going to be in an airplane for a long period of time you can't get out of an airplane and and you know there's there's considerations of pressure in the airplane etc that have an effect on on conditions but here of course in a motor coach in the record is clear here that this driver stopped every three hours so there was obviously an opportunity to do it it's a different scenario than the world health and there's also reference that only to a possible link it just talks about an association not a direct causal link and that's the problem that the district court judge head here it was not quantifiable is based upon the evidence that was presented to show the causal link and the risk was very very small and where it did then the where there was a measurable risk it was really with the characteristics of the of the passengers individual characteristics like whether you were pregnant whether you were on hormone therapy in different factors which of course under a lot of the cases a few of the cases cited in our brief general rule of transportation companies are not charged with knowledge of individual characteristics it's very difficult and a very difficult burden the surgeon general report by the way which has some evidence as to some numbers of people who are affected by this disease that report is not tied to travel and it certainly does try to travel in then to motorcoach so what we're dealing with is the actual evidence the real evidence here does not establish that causal link that is that is required the same thing with the experts that were present here dr white testified that there is no credible medical literature showing the risk of developing the d v d increases above normal expected background risk in the general population and the plaintiffs expert was relying again when he makes his report in actually his particular statement as to cause of this fell way short he said maybe there was some immobility but not that it was because of this bus and that was critical because she was don't forget travelling from el salvador for seven to eight days on numerous buses including in el salvador and in mexico so that was a very important  determination and that testimony that he gave was based upon the authority that we just talked about that is the world health organization report it cetera so that it so the port is absolutely correct the district court when it said that the closeness of the connection was not sufficient ask the public policy a couple of the the things in the role and factors i think bears some discussion because i think that it shows a problem with imposing such a duty as a duty to warn in this case first moral blame this is not a situation where there's an there's a positive negligent act this is an act of omission and it's important moral blame in relation to where the evidence is unsettled medically asked whether there is a causal connection so to say that you don't give a warning and the evidence is not there and you are lying on guidance from federal agencies and you don't give a warning that's hardly moral moral moral blame what do you do to this argument that your your opposition makes that where you have a sister company gives these warnings all of you and that is in  my my recollection it's from scotland and it's a it's a far removed company they choose to do that is is whatever the reason they choose to do i don't have any factual basis for those particular  what they are aware of seemed a little uneasy for you to suggest that if you have a sister company who's making the warnings that the you are suggesting that you then don't meet the degree of certainty test where you are there's a voluntary doing something that at their request is a different i think in relation to a mandatory obligation to warn under the law where there's no close connection i think that's the real issue here of the mandatory nature to of it a voluntary act it's a voluntary act i'm not going to say it's right or wrong but we're talking about a mandatory act based upon the idea that there is a there is such a close connection that it requires that type of type of activity the that i'd like to close with this your honor i think when we look at the the notion of preventing future harm the again i think and i make this point because i think it is i think it is relevant that this is a heavy heavily regulated industry i think the agency themselves that are involved in public safety are probably the best suited when we look at all of the studies that are all over the world to determine has the actual risk risen to a medical level r s in response to that last point arguing about the lack of regulation but that such an argument would lead to sensually to the federal usurp ssion of state law this is a matter of state law and under state law they owe this  upmost duty of care and going through out the record the evidence provided on summary judgment the surgeon general referred to deviate immobility as a triggering event the c d c call that a serious risk and defendant relies on their ex now as part of plaintiff's evidence they included a pamphlet from u c davis which included an article from dr white on that very same page includes it discusses the connection between immobility and d honor i think that your honors in light of how this has been recognized throughout the industry and defend its actual knowledge and the fact that this is a significant as the district court calls it insidious condition and the resulting negligible burden to defendant for simply warning its passengers i think in light of those factors defendant is unable to establish that the factors identified by the california supreme court and roland clearly support