actually before we started know that there are a lot of sealed materials in this case and you're not sure if you're going to need to refer to them if you do feel like you need to make any point on your own or in response to that the three of the members should just been recuse because they had conflicts of interests within the meaning of the federal conflict of interest was this record accepted th other claims that are made to and all of those can be aired in the event that there is a final will some in that case i do think that untrue that i put the rightness label on it but i agree i think something we don't think that there's imminent injury we don't think that for that matter for a lot of these injuries we don't think that there's requests ability either what about the district courts determination tha members of the committee who already have in gauge mens to do future testimony against the plaintiffs here creates a conflict that's that's current and real well it to be based on something i mean there certainly can't be a rule that says that you're harmed because a point of who participated in because with somebody an expert who participated in the creation of the report is going to take some future is going to present testimony is already under agreement and to present that testimony against the very industry that plaintiffs participate at yahoo you know not true to what extent i mean i have to look at it to see to what extent there really are such agreements that are like on place but there is no there's been there's been a while since the since after the report issued we have is nothing to support the claim of any harm that's been inflicted i've said when i've testified before that and he knows that the statement that the report of the advisory committee says more or less the same kinds of things that he said before and th mean that's the problem when you're going to say is these folks come serve on this committee knowing that they have nine hundred plus contracts for expert testimony lined out in front of them all of which will be worthless if they produce a report that says the opposite of what they've been saying for the last twenty years and now instead they get to go into those currents and say here's my testimony and guess what this blue ribbon panel the f expert witnesses but one of the things that they do is they touch the fire truck so with some of the witnesses testify to a crawl in a way that's consistent with everything that he said before member of the committee is important and that's why they're on the committee and one i think it's fair for us to presume that they had influence otherwise any minority of an ep of an advisory committee could expert witness on and i'm sure they have their expert witnesses would you rather have an expert witness that you can then also tell the jury is what it was his his his judgments his opinions work ne of the committee because these are the experts in their field and the fact that they're going to continue to testify and even principal you about menthol i mean essentially w just a rule that says if you're somebody you want because in the business of testifying against the back home industry you're disqualified is there anyone in your view or category person or type of person at a particular level of rightness that would have standing but i know you you claim that there is no private right action here but something assuming for the moment that there might be a where's the better standing candidate rule making that would seem to give them plenty of plenty of chance to put their perspective and attack their origin so it's hard to say there's necessarily enduring there but we were focusing on some of the other injuries and it may be that your position is that there is nobody case and this hypothetical far as i can tell from this record there's a menthol trial next week and now this guy gets to in addition to all his nice credentials say and by the way the blue ribbon panel they all agree with this s again all we're talking about is somebody who is taking part in the whole the advisory document and the fact that somebody didn't like that he can then cite to  conflict of interest rules don't create any protected interest in anybody have been there to protect the government and government only but the mississippi valley case is simply referred to  protecting the public as well it seems to me of it you know that just looking around this world people are often most hurt by corrupt government officials are the citizens residents of the country that better having to live their lives on their corrupt officials why why aren't they correct in saying that at least this is that argument that the ethics rules create protected interests for the public as much that the public has a strong interest in making sure that the government the government employees or dedicated to the service of the government and that they aren't using their position for their own financial without there being a private education arm to force the conflicts laws and i think the consequences of taking a different view would be fairly extraordinary and the point is not that there is sort of the wrong position because it would open the floodgates it's you can the fact they're put open the floodgates sort of is one of the sort of terre interconnected is that they have a label that a procedural a violation of the ethics rules of procedure all injury would you know you would agree that they have received your letter here but would you characterize that interest when you sort of thinks that there is a conflict but it's not substantial then you can give a written certification and then under to be that gives you a safe harbor or for advisory committe c the ethics official can go even if the conflict is substantial i give you a way for and you're protected but that's the whole procedure where we've kept you long i just one last question sort of about the merits that relates to the  process that was undertaken here i know there was an f d a in the air and on the lack of a need to screen for the back a cessation products and then there was greening include them even though they had an opinion that they don't really need to go i can put they concluded was that they didn't need to they wanted to know when i do my meeting by meeting or to go to be discussed so i say look i'm i going to have to revisit each time the issue of smoking cessation and i think that what they had decided was no you don't need to do that and so you think there was there was meeting by meeting screenings did not look into that i go back and i don't think that the honor i mean i don't we don't have i don't think we've got a record of constructive work but i think that was the point was that there was an extensive court said as the supreme court noted in ohio forestry quote a person with standing who was injured by a failure to comply with bracket some procedural requirement close bracket may complain of that failure at the time to fill your takes place not have on wage conflicts of interest it's a hand if they are serving with which one way to conflict of interest they should not be receiving our confidential information but if it's w waived the conflict of interest they can do that ok so there's no protection for your use of confidential information going forward out there only if it only if they pay the price of giving away for good to make a waiver they have to me have to make my you feel better to have a waiver on the record but that does buy the compliance directive so that dr samet or others similarly situated though henceforth receive our confidential information and then use it to consult against competitors and in formulating their testimony against  in courtrooms and that's understanding that they are already on their missions against us and that confidential information in any way they can do it without disclosing it it could occur simply in that creates not really a financial interest but appearance conflict if you look at the evidence we put before f d a about the editorial in the boston globe the columns in the wall street journal in the washington examiner the statements by the three public interest groups the two bloggers one of whom testifies against tobacco companies none of these people is a friend they all saw the conflict from their from this kind of thing from their access to our information and from the role they play as consultant public health effect no public benefit to the public health would would be better if menthol cigarettes were moved from the market that result that recommendation is based nominating toxicity but rather on the role of menthol in  injury based on the decline and stock prices and i wonder if you have a any case in which we've found you know outside the securities law context such an injury to support sending an o it to an injury to you my understanding is that it was that these folks have i thought the number was nine in excess of nine hundred plans to testify going forward is that number correct by hand by the three of them  did you make a showing for is a summary judgment as to whether those trials involve menthol cigarettes that are coming forward or not doesn't have to be my miss asking whether you have you shown a willingness or cigarettes but the testimony about ment record shows testimony about menthol going forward as you've said there's all these contracts to testify in these future cases are any of those future cases that you're facing menthols cigarette cases there  to the merits and we may never get there by the notion that as scientists whose field is to study the harm the acknowledged harm that cigarettes cause to a scientist and whose views are only as good as the science that supports them would somehow have a conflict based on giving is subject to cross examination in a trial and giving a view in a government commission or helping an investigation a government commission said and comment before in the room making it just i'm having a little trouble grasping any harm that flows from that let me address that there's much more to our position than merely being a scientist and testifying first going to lie on any published scientific papers is creating a conflict at all or research what we rely on is the combination of three factors one his you have somebody who is a paid expert witness on a who testifies recurrently multiple times hundreds of times here go to a fixed position he doesn't test to hear she doesn't test by one day on one thing one day on something else the same position over and over again and that position he said the core of what the advisory committees work conceivable that you could have a judge who testifies is an expert witness over and over and over again on an issue that the judge will decide in a case that judge could not be impartial neither could neither could dr hanningfield or again that cigarette manufacturers whether it's a mental case are not designed cigarettes to make them or do give an example of that is the use of mental i'm damned sure that because one is a judge who's supposed to apply a lot of fact in a particular case and the other is an expert talking about a scientific fact is subject to investigation and verification and every different jury or finder of fact in every different trial needs to have that explained by a scientific expert so it's no secret and no showing of bias that that person would say the same thing again and again and in fact it seems to undermine your claim that these people have been doing this long before and will continue to along after the participation in the federal advisory committee if if if they were to subscribe to a menthol report that contradicted their testimony that they would lose future opportunities that was raised that's a financial interest that's right and presumably if the science discipline at the core of both what the witnesses in your cases do and what these advisory committee wednesday and i can this is this is it's just to think it relates to the question of how you're harmed even though it's  merits question because i'm not sure that i see the bias cashing out in the way that you are pointing to in each of the harm city by dr voted reasonable people who see the bias and wrote about it and we put that in the record and under twenty six thirty five five zero two that's this positive and if the government had done a formal waiver you would still be claiming standing right thought was that they didn't go through the waiver process and make that public and that you said i thought you said before that if they had done that there would be a tin can tied to the report in the studio i'm going to put a legend on the report saying this was  thing about what you have standing in this case to remain in possession of that injunction and that is it can turn on the fact that f d a might in the future decide to rely on the report in addition to its own well session charlie mandated investigation advisory committee do you have evidence of how often they have relied on congressionally mandated advisory committees when congress has also managed mandated that the first undertake their own independent scientific investigation i would submit that doesn't make a difference if the picks the people on the issue a final determination on the issues at hand until input from the advisory committee process has been considered and all reviews of been finalized so the f d a said publicly that it's going to pay attention to this committee and the history is what the committee unanimous as dr senate managed to make this committee unanimous f d a that relies on its recommendations ninety two percent of the time and there's no contrary evidence in the record that's a that's i don't i mean there are no you be some extraordinary circumstance but again whether it's the we have inspector generals we have congressional oversight if responsibility as an employee to recuse yourself if you think you have a conflict and you can go to your agency and try to get a waiver from a conflict rightists assume you would agree that if there were rampant conflict of interest problems that would be at least in arguments on would have the result and they were resulting in a role that relied on that conflicted will argue that agency officials or is or they could say that the votes would be committee members are biased to think that it's a form more important when you're talking about you know agency employees or officials they've got a lot more authority they are going to be purely advisory capacity but it's an argument you could make about then tomorrow you could you could make a bet the advisory committee members you know answer to their point that after the menthol report what he might testify about and so that's all that we have we don't have either actually ever testified if you had a future case so it's not far away it's coming up next month after the men report issues and it was actually about one of the litigation issues was whether it was menthol itself that helped to dig this person keep this person on because it doesn't bring the throat as much or mean i have the numbers up and it's like nine hundred trials and more than one hundred trials i mean that's a lot of money on the line and if these people had produced a report these three experts had produced a report it's not this is whether they've been injured if you know if they issue that report these folks are out of business they're not going to get called in those other nine hundred cases that's a lot of money down the drain it seems to me that's not speculative question bad that we don't get a look at because their point is that they they they are injured by the fact that these folks go and create this report that then makes them better witnesses and nine hundred cases and it seems to be linking reality to