is not discretion to perform the function adequately the district court used its discretion in two main ways the first is that it confuse its role as gatekeeper with the jury's role as fact finder because it continually substituted its judgment for that of the jury by conflating the merits of dr makes opinions with their methodology is reliability and the second way it abuses this question was it applied the wrong legal standards and it misunderstood or mischaracterized the facts for example when it confused the category one category two distinction it and i'm not sure i understand dr minks well let me put it this way i've read dr max report when you read his report he has certain conclusions there are not citations to those specific conclusions that might be important instead there's just a list of references at the end and when you go through his deposition testimony he talks about for example on the dosing information oh i got this you know from the iris the iris preamble explains how these numbers a comes up with are you know doses that can be used and even just setting aside our our precedent in this circuit that talks about how you can't really use that i don't first of all is the iris preamble in the record i couldn't find it second of all i looked online to get iris to see if i could understand what he was talking about and i just don't see where that explanation is and so there seems to me to be a disconnect between the numbers it is using and explaining why those are how those can be used as dosing standards right so factual question  so yeah he did he didn't do that analysis i don't know if the preamble is in the record but it's something that exists it's something that you could take judicial notice of because it's a regulatory record if it's not in the record he says he went to it and the way this works is they create they they look at all the studies and then they they pick a number based on what they think should be the appropriate number and so the easiest one is to look at that so t and here there's that basically all the scientists get together and they say well let's look at this whole body of research and pick the right number and they pick a number based on the acute effect on the sensitive population so it's not it's not like a long term thing it's like if you breathe this for five minutes or ten minutes you're going to have some kind of morbidity which doesn't mean you're going to die just means you're going to be hurt and the number they take it initially was one forty and then in two thousand and ten they kno to to seventy five but there's a little bit of an apples and oranges comparison that our disagreement with mosaic is music said well you know some of these studies are saying the numbers much higher but those are those are different because after after they look at all these all this research they come to conclusion that seventy five is the right number to protect to because that's the number at which a sense of population will cool will be hurt and we're part of that sensitive poppy lation so he does this analysis and he says the threshold level for the sensor population which is what ms williams is in is seventy five so the question is not really whether that is correct the craft the question is is this a reasonable methodology for  need to say you know something is there and he ultimately said well any amount of the epidural and caffeine is too much and will cause you know some kind of injury on the court correctly said well that's not that's not good on multiple grounds and in terms of the regulatory guidance that's an f d a draft guidance that the f d a actually pulled because they said well we don't think there's a causal relationship here and part of that is the data set that it was created on that has to do with the adverse event reports which is the worst kind of dataset you can have because it's self selecting and it's just not doesn't meet scientific rigor so except except here's a problem wasn't there more general language in the case that said something to the effect of the reason that we don't rely on these standards is because they are they're geared to provide guidance and pick up the most sensitive populations where they might have problems and so since it's a health precaution that we're prescribing for basically we're going to err on the side of caution and so these thresholds are too low the isn't that what we basically s complaint and opinion i don't think so i think what you said was you need to be careful when dealing with these kinds of regulations because they often are predictive rather than causal and so you hear position is that is long as you're aware of those problems a given set of standards might be ok if they if they anticipate more than being just  underlying them establishes that it is predictive for the sensitive subject and which is what ms williams is a part of so this is a distinguishable case but it's part of this appeal you have to you have to read this case very closely and there are some court should understand what the rule really means about causation for the specific plaintiff not simply about protecting the public at large from risk of harm based on risk utility analysis of the drug so it's like what does this really mean and i'm not sure that's ok i understand your point thank you let me turn it to another question i have and that concerns ruling out other etymology like other harms causes any yeah exactly  l what what exactly did he do to rule that because it rule out anything else because that seems like it might be an issue or is it your position he didn't really have to since she is a g six or whatever it is g six p d it we're not saying that he didn't have to we think that's an appropriate part of the methodology that toxicologist needs to do we're saying that he actually did that and he discusses that i believe either  so he considered for the airway remodeling you know possibilities of trauma or the wrong thing well he considered you know things like her smoking alternative causes like for example that's why you looked at the chopper board the report because he was saying well these are these are alternative ways that these for example to have hazards air pollutants could could reach in his eyes well i looked at those things and then i ruled them out when mosaic bickers with that they don't i don't think they're saying that that was incorrect there but well that what they're saying is we don't think that you did this correctly and that's more of a merits argument to me that's something that i it well you know that maybe you're right but you know the judge is not supposed to determine that the jury is so you have to get through the science then it should come in and that the merits of that opinion should be determined by the by the jury do you want to hear more about mclean or you kind understand our position about that i understand but whatever you think i haven't spoken with my colleagues at all about rights of course  another part about that the general causation opinion that caused him to cause the judge to reject the opinion was that you know i didn't consider that the background rest of the things she keyed on was you know is inability to remember at the deposition the precise numbers and mcclain actually addresses that it says you don't have to have precise numbers for these kinds of things a little bit of ambiguity is to be expected it says that in a  e and then with respect to specific cause ation one of the things the judge focused on was that he didn't independently calculate the doses but you've got to remember we're dealing with people and  with very dangerous substances so it actually be unethical and perhaps illegal to perform human testing on you know these sensitive subbie elations with you know s o two or these other radioactive metals and instead what he did was he relied on these standards which is you know it's based on human testing but not some of it where they expose people to it they were healthy people and then other bits of it as animal studies but all this is considered by the e p a when they formulate these  regulatory standards and then they set it at a predictive causal level at the low end and then he performs the weight of the evidence analysis which is called bradford hill and that's all of these different things that to scientists mean you can draw a causal inference and the judge says well he didn't do that he didn't quantify the probabilities here and again that's the thing that mclean's that you don't really have to do that you just gotta weigh it and tell us what you think the answer is and to the extent that there's a disagreement about whether that's the correct opinion that's a question for the jury very briefly about the property damage issue it begins and ends with dietz and nass cases there  a little bit of a sidetrack that we had with the florida law that doesn't need to be considered it's just it's a nest and decent nest say that ms williams to testify about her property's value and then there's also a little bit of a distinct we have a difference of opinion about that benefield case and whether the damage was total or permanent opposition is both total and permanent because it's caused by in part these fosco gypsum waste stacks that will always be there don't build they'll never be removed because that these things just can't move and so she's going to be continually bombarded by this dust and the dust eliminates her ability to own them to enjoy the property so it's both permanent and total well first and foremost as a threshold matter they had to embrace a genuine doe's response methodology and they clearly failed to do that and how would they have how would they have done that or how could they have done that they could have looked at it can the constituents of concern that they had done a fied look to the medical literature and a dental fide levels at which mr dr make excuse me could have a pint were were health based it is absolutely clear and you asked about iris and knacks and i can i can help with that they're in the federal registry their site in our briefs to the west last sites for them and they are clearly protective and not predict every day your honor when i get in the elevator the woods iris not the next yes and iris says and access no words these are protective standards it's no different than when i get in the elevator every day to go up stairs are all be so so if i may actually border work right to complete the analogy if i get in the elevator every day which i do at work at it says maximum capacity twelve people you know no one exercising good common sense things  the thirteen person squeezed in that elevator was going to go crashing to the ground and why is that that's because that standards the safety standard it's protective and what he did here was establish the seventy five parts per billion standard which is a one hour standard and it's measured by looking at the worst of the worst so if you look at that seventy five it was exceeded for less than one percent of the time over a three year period four hundred there was some statistically significant effects and at two hundred they found effects only in five to thirty percent of the population and e p a found that to be statistically insignificant so  are five to thirty percent of the population who had the problems but but those are studies where someone is wearing a mask they're taking s o to directly and they're exercising as maddux under moderate to heavy exercise the pushed and then they look for an effect then then the p a ministers left with a policy decision and she looked at one fifty is the limit she looked at one hundred is a limit she looked at fifty is a limit and she picked seven  split the baby between fifty and one hundred seventy five and decided that would be protective sensitive populations importantly your honour's with a margin of safety and that's in the statute you know that's that's in the clean air act itself that the administrator must set a standard with a margin of safety so for miss williams or dr mayne to maintain that seventy five is is a benchmark a threshold at which health effects will be will be felt  would necessarily mean that the administrator of e p a violated the clean air act by setting a standard that has no safety margin and that did not happen and iris if you will is worse iris and you just just briefly ira says and this is the p a iris reference concentrations cannot be used to predict the actual incidence of human disease or the type of chemical exposures may may have on humans type of effects partly chemical exposures may have on humans the reference doses are an estimate with uncertainty spanning perhaps an order of magnitude and by the the only iris report that they produced in opposition to our dog motion was with chromium and chromium is based on two studies of roads no human studies at all and this court has warned i think of my claim those standards and say if they're exceeded ergo they must be causation and undermine claim that's improper and under good principles of science it's improper sack and he never excluded background risk  he said that he did but you've read is reported rose above and it's not there and importantly in the record here are three prescriptions if you will that restrict dr ming to his report not a supplemental affidavit that after dover motions been granted and not even his deposition one rule twenty six restricts it to judge scrivener's case management order restricted it and three when we got this report we knew it was inadequate and weeks we filed them we  contract to person house we filed a motion it's in the record and said the reports insufficient on its face we went to a hearing before a magistrate judge wilson and judge wilson said if they don't want to amend the report that's fine but going to be restricted in his testimony to the four corners of that report so nothing outside that report should bear an on on this court's this court's decision with respect to the he doesn't understand what it is because when he asked in his deposition he says what's the prevalence of pulmonary hypertension in the population says i don't recall it's a large what's the prevalence of obstructive pulmonary disease th to conditions mrs williams complains of i don't recall specifically but it's significant now in their briefs they take the position that sufficient to satisfy my claim has nothing to do with background risk is this court has explained it to the district courts and practitioners background risk is the risk that a population that is exposed to show effects of a disease or a condition above background in other words above a population that's not exposed so even if he had given numbers here which he didn't and said the incidence of palminteri disease is thirteen percent that's only the first stage of background risk analysis the say ok in progress village we're miss williams lives what's the what's the incidence of palminteri disease and is it above that thirteen percent background it's the delta that is the elimination of background risk and if your readers report but that's not i mean i'm not sure that that he had or that she had to do that because how it she get that information how would she be able to determine what the incidence of commentary disease is in progress village i mean we can't set an impossible standard now and that's fair but they could have looked at other similar populations they could have gone to data from the florida department of health they could have gone to data from the u s department of health and at least could he could have said in the population as a whole this is the baseline this is the baseline and when asked interesting lee enough we don't have to get to persuasiveness for the following reason when asked are you aware of any complaints you know not thirteen point three any complaints from any other progress village residents similar to miss williams dr maint answered not that i'm aware of not one but again i mean  public health her health information is protected under head and you know that i mean i understand your point i think obviously there is a background requirement we've talked about and it's clear that there is one  but i think we have to be careful about setting the standard so high that it's really not attainable i think that's a fair point judge but i think in a discussion of a ph d toxicology report there ought to be at least a discussion of what what is the background incidence in a population whatever data might be available state of florida hillsborough county united states what efforts were made to see if you could get the delta and if you and if he had made a genuine scientific effort  concluded that that data simply wasn't available then judge scriven below could have looked at that as a factor of reliability and decided that it met the standard but he didn't try there's not the the you also asked about the the yeah and so in chapman and on this court spoke quite a bit about it insead a reliable differential analysis we call it several different things requires an expert to compile comprehensive list of hypothesis that might explain the plaintiff's condition what could have caused the commentary problems the expert must provide reasons for rejecting alternative hypothesis using science using scientific methods  procedures and the elimination of those hypothesis must be founded more on more than subjective beliefs or unsupported speculation importantly right from chapman and experts failure to a numerate a comprehensive list of alternative causes and to eliminate those potential causes determines the admissibility of proposed specific causation testimony there is no discussion of anything like that in the report it's just it's just not there and in in when vs after zeneca an eleventh circuit case in two thousand and ten this court said an expert conducting a differential ideology must provide a reasonable explanation as to why he or she has concluded that any alternative cause suggested by the defense was not the sole cause of the injury an expert can can simply cannot simply dismiss alternative causes by stating the risk  essentially zero which is what documented that your decision and kilpatrick now here if you look at the record miss williams had asthma since she was a child she testified that both of her parents smoked heavily at a very small house she testified that they smoked in the car for years she lived at home she testified that she has allergies that are so severe and they make a point of it in their brief that when we took her deposition they asked us please don't wear aftershave or or any thing outs her medical records indicate that she's morbidly obese more than one hundred pounds overweight so with all due respect to ms williams there are lots of things that have called could have caused her to have some difficulty breathing and so differential is it any ology would have required a good scientist to go through each of those and explain as this court has prescribed in going and then kilpatrick and why precisely he had eliminated each of those causes he did none of that he did none of that so in brief the dose response failure to to to to appropriate dose response and blind reliance on regulatory standards in and of itself would cause would militate for a firm and here the court's well aware the standard it's a few said discretion it's particularly toxins in or around my home too they came directly from those egg three they have long term health effects for the permanently damaged my home five under florida law i'd be legally required to disclose them six if i if i did so in the future no one would buy my home and therefore number seven my home is worthless so the first four toxins fate and transport of those toxins from mosaic the permanent damage to her home and her legal requirement to disclose are all legal issues that require particularized expertise they're governed by rule seven zero two and therefore there precluded the bard under rule seven zero one  and the cases they cite by the way are virtually all decided before the amendment two will seven o two to add c next she says not that i've tried to sell it unsuccessfully she admits i've never tried t if it's a pure hypothetical if i decided to sell my home no one would buy hypotheticals of course your honour's are the realm of experts you know they're not the realm of lay witnesses and last and very briefly  she hasn't she remembered rule twenty six disclosure she said i've been praising all my home for ninety thousand the property appraiser has appraised it for fifty thousand and their sales in my neighborhood including on my own block so not only does she want to testify to what we've already discussed she wants to testify that her own appraiser is wrong the hillsborough county property appraiser is wrong and that the market has ignored somehow the effects of the plant on value and if you're going to testify that a market hasn't adequately discounted for the presence of a huge industrial facility that's been there for decades i would submit that would require an economist or a real estate do you want to address mr weinstein's arguments on mclean yes the mclean case is different because it's dealing with a different regulatory situation the f d a is like only trying to establish protective levels and the f the e p a in this case is also trying to establish protective levels but those have to do with the general population and at heute exposures and here we're talking about  a sensitive member of the population and for a sensitive member of the population the e p a s regulations are predictive not protective that's the difference where can i find that in this in it and serve him you know yes of course but that's that's the difference so that apples and oranges that we have going on here is acute versus long term and sensitive versus healthy member of the population so for example to use the elevator analogy it's set for twelve people but what if those twelve people were you know member of the doubt that all dallas cowboys off uncivilized or sumo wrestlers would be the thirteenth person caused the elevator to fall possibly if they're all like three hundred fifty pounds and that's the situation that we've got here and that's what document was was talking about the discretion the standard of review is discretionary but it's important to point out the district court didn't have an evidentiary hearing didn't have a hearing and those are normally very helpful in determining all of these very complicated dougherty issues and had she had she done that a lot of these scientific questions would have been answered and this is something that you pointed out in a footnote judge show flat in your opinion in city of tuscaloosa they're helpful and we should have had that here and then that when we're doing discretionary review to show fight also and in your concurrence in united states against frazier he said well let's let's do this more analytically let's split up the legal standards and the factual questions so i think that's a helpful thing to do here what were these factual findings clearly erroneous and was the application of the legal standards legally incorrect and that would be reviewed to novo so i think that's the the framework within which you ought to look at the problem and then just as a final point on the property damage question that mike my colleague take off a lot of things that my client would have to testify about but one of them is in correct it doesn't have to do with cause ation of  human injury she just has to prove under the specific specific statutory scheme that there was a discharge so she doesn't have to have this like expert testimony about what the what these things actually do she just has to say look this is scary stuff and it would decrease the value of my property so we're asking you to vacate the judgment and remain for further proceedings thank you thank you thank you gentlemen of course be in recess until nine o'clock in the morning