good morning to me please the court my name is keith patton and i represent natalie convict also with music williams and david bloom who helped with worked on this case as well this case should be i say should be focused on methodology the proponent of expert testimony must prove by a preponderance of the evidence that the testimony is relevant and reliable you have to show the experts are qualified and that their methodology is is is valid question is not it is not whether the court finds one set of experts more persuasive than the other it is whether that fact or whether trier of fact should be term permitted to make that choice the ultimate conclusions in the bulk of the criticisms by the district judge in this case focused on cross examination areas they focus on issues that are primarily really primarily related to specific and not general causation the district court did not appropriately focus on the principles and methods of our experts instead it reached its own conclusions from the scientific studies and excluding three highly qualified doctors with a combined one hundred years of experience which you know something about your brain seems to me you did not disregard what we've heard from what we focus in on our brief your honor was to focus back on the methodology the the district court's opinion is replete with cross examine tough cross examination subjects the way that expert dep reports and then ultimately expert depositions occurred these days in toxic tore cases is the defense counsel will go through each study the expert relies on and show some of the weaknesses show some of the negative points disregard some of the positive points and that's a cross examination the district court in this opinion largely adopted or mirrors the exact points that the defense was making and that's where the the abuse of discretion that's where the clear mistake is plaintiff's expert has relied on ten studies all of which failed to address the relevant matter then the fact that there's ten of them doesn't suddenly make it now a matter for the jury i mean there's still a gatekeeper from the whole idea of a gatekeeper is that juries get impressed with somebody having a big title  big degree and all of that and so we want to be sure that the person has met some basic criteria before putting them in front of a jury so relying on a bunch of studies that are themselves either not about this  particular chemical or not reliable doesn't transform this into a credibility issue it's still part of the gatekeeping function no matter how many studies there are so i think the district court did exactly what the court supposed to do which is go through the stud itself and say do they support the theory here i understand and respect your point but here the twenty nine studies that were focused on by these experts deal with organic solvents including and especially ben solvents organic solvents are what natalie conner was exposed to throughout her pregnancy working fifty yards from the from the docks where in the month of february two thousand and thirteen eight hundred thousand gallons of crude were discharged and in march organic solvents in the course of her work her injury the adverse legal outcome was was the death of her child organic talked sense there are there are focuses on specific organic solvents those were benzene a lot of this evidence in this case also focuses on tal ewing because the evidence and we had a meteorologist opine as to the continuous and systematic exposures natalie would have had working fifty yards from the docks to those two persons chemicals along with the broader category additionally organic solvents as a category are would have been studied throughout the literature the experts must rely on what is published in the in the literature  y relevant and reliable and cetera et cetera and the problem in these chemical type cases is isolating the relationship in the particular chemical to which the person is exposed and the resulting  for example that a claim made by a scientific witness has never been the subject of peer review for the particular application it issue may never have previously interested any scientist for some reason we don't have a wealth of study studies of pregnant women working in refineries monitored for precise exposures and the reason is in this country pregnant women normally don't organise fineries the other point is and the reference manual covers for this but the lack of a study dealing with you that category there are statistically significant findings above two point zero for tell you when and for benzene throughout the literature cited by our experts and that point is lost in the judges a bit in the district court's opinion because she's focusing on the cross examination points i  get ahead of the inquiry the inquiry should be on methodology and experts disagree the real disagreement in this case is whether or not misconduct feet is suffered or died from an infection or whether it was from the chemical exposure that's really the battle of the experts particular solvent caused it and i'm sorry i mean unfortunately again this is a very very tragic case and there's no question about that but that doesn't make these people liable for the question you pose again going back to differential diagnosis as an accepted methodology as the gatekeeper if you have a dispute over whether it's chemicals infection or didn't overall unknown causes which by the way everything besides as best as the feel the oma is going to have a dyno type of factor but once you get past that that's the differential diagnosis application and one expert might say as ours do the chemical side the defense experts the infection side and that's where the battle has been and that's where the battle should be with the jury coming which speak to it and it is shown by their own testimony that recognizes it and it shown by the autopsy before this case made its way into the courthouse the medical examiner at the university of alabama with twenty one years of experience describe the mechanism of action described how this this this baby died and she also cited the articles significant to the issue of toxic exposure to benzene and solvent in the workplace and not only the death but also the type of congenital malformation exhibited by this child very low birth you open the door to requestion other findings that have already been made or that would be made by clinicians in their practice and pipa tone i think pick a tone is very instructive and i don't say that your honor just because you were on the decision but it stood out the most to me discretion and excluding the testimony of the doctor the doctor a value the court this court evaluated the doctor's testimony under dauber and found it in miscible noting extensive experience treating infectious diseases his academic appointment in the universit department of infectious disease and his publications in the area ok dr baer is the neonatologist thirty years of experience published in this area over sixty publications including a book chapter and her methodology of differential diagnosis her methodology of applying basic medicine and evaluating the situation should be in this record say in a lot of these generalities with respect to toxic substances and how they affect individuals and situation plaintiffs are not applicable here and the expert did not try to explain away the in applicability of of  harrison's analysis they were part of dr harrison's report dr harrison his methodology and he spells it out in his report he says the determination of general causation is a complex undertaking it includes epidemiology toxicology so on and so forth i have considered not just published epidemiological reports but all relevant data including the human case reports experimental studies mechanistic data including unpublished addys he says i have followed general generally accepted methodology for determining causation there is no challenge by judge vance that he did not cover this identify all relevant studies he did that there's a criticism that he missed one follow up study reading critically evaluate all the relevant studies there's no indication he did not do that evaluate all the data based upon recognized scientific factors bradford hill and other factors relevant to the chemical and the disease of the injury number four exercise best professional judgment exercise of judgment based on thirty five years of experience he's board certified in occupational medicine a number five explain the factual basis and reason in supporting his conclusion he recognizes the broader category of organic solvents and he recognizes the more specific category of fencing again the presence of studies that cut against the expert's opinion and that are not accounted for the expert is the subject of cross examination and not a barrier to admissibility that's in the reference manual turning a little bit to dr waters dr waters has thirty plus years in medicine she teaches path ology pediatrics obstetrics and gynecology and emergency medicine she's board certified in four different areas one of which is pediatric path ology there are only for about four hundred people board certified in that area one of the main areas of bradford hill is mechanism how did this injury happen how do you get from a certain type of exposure to a certain type of adverse result and dr baer clear i'm sorry dr waters explains that there were increased nucleated red cells indicating a stress such as decreased oxygen or toxic exposure she describes how the lack of oxygen  she also cites studies statistically significant findings relating to the exact type of problem you have here i understand that upon a reading judge vance's opinion there is an overwhelming page after page after page of this study says this this study also says that it goes back to what happens in cross examination expert depositions they show up with their box or is here you get you get a disk a couple days early and as a as a as a lawyer in these cases you can go through and pick apart your points for the cross that's all them it doesn't go to the methodology the methodology is the reliance upon the whole body of literature and the application professionals that excuse me with that premise of the methodology she gives i mean her opinion then she begins to take it on point by point and comes down to the conclusion that she does and then you don't you don't really address the weaknesses that she points out we do address them your honor my time is up here and i cover in rebuttal but we do address throughout dr harrison's opinions as are cited in the reports of the statistically significant positive findings they are covered thank you thank you the district court has broad discretion to determine whether a body of evidence is sufficient to support and that we know from dawber to enjoin etc etc that that gate keeping one function is one that's assigned to the district  when thinking about what judge vance did in this instance one not only can look at the forty four page opinion that truly does in a sense show her work it's not a one sentence order that says we find four for the defendant she shows  talk about the methodology what she found with dr harrison is that dr harrison cherry picks data from stuff that's a methodological flaw that dr harrison relies on studies for which the findings are not statistically significant the confidence interval includes one you can't rule out that a finding might be based on chant there for that is another methodological flaw she also finds that in some studies and this is a core core problem with this case and this is more proof of why the district court did not commit clear some studies simply don't apply that is she's to look at reliability and relevance they do not apply when the specific injury is different from the specific injury complaint by this point misconduct suffered a terrible terrible injury there's no dispute about that it's a tragic set of but recall what we learned from the very definition of general caus know from the night case in all the cases that i've cited it said that general cause you mentioned is a question of whether a substance is capable of causing a particularly injury and i want to add emphasis to that death that term a particular injury now the plaintiffs are engaging a little bit of a tech sodomy trick here to talk about adverse fetal outcome as a as an injury that's a very very broad that's a very very broad description but we know and it's set out from footnote thirty one of our brief and throughout the opinions of dr manning and dr belmont from the defense side we know that this particular person suffered a stillbirth twenty seven leads and there is some and in the footnote i mention as dr manning sets forth there may be some evidence of impact early developmentally in the development the embryonic phase but there is really no record there's no there's no eliab of scientific data to support the problem hi i have is there is no pregnant woman who would sort of knowingly walk into a cloud of benzene and so the the problem is it seems like there is an issue here and yet we can't quite find the right study perhaps for the reason council opposite said which is there aren't a lot of volunteers to go do a study to be unethical probably to do such a study you have to look at just in pure account data which maybe there isn't a lot of in the united states there isn't other countries i don't know but so then basically you can send clouds of benzene at will and never be held accountable for that so how do you answer that concern so i guess i guess what without engaging does change the this seems this isn't that she i don't know she was walking along on a city street and it's just a polluted city and she's kind of generally trying to sue the city for pollution i mean this is a rather specific chemical that seems like there is suggestion and you even concede suggestion could have impact and seems rather obviously could happen impact and yet we're all sitting here parsing everything very not judge dances to initiating the question it's sort of starts the question slam the studied pregnant women as late as twenty seven weeks and found some evidence and these are some people working their petrochemical plant some neighbors etc etc so with all respect to change there are studies that are studying the late pregnancy and potential exposures to been seen and what slava found was a not statistically significant issue of birth weight and had circled at that twenty seven weeks  yes i understand we have some of these epidemiological type studies having us an empirical form of deeming logical and i get that and you know that's terrific but we're not going to go study it in a controlled environment for the reason that as i said i hope we wouldn't get  interiors even if somebody overcame the likes issues so then that should tell you something because we will have people volunteer to drink milk versus drinking you know water or his drinking skill milk or something like that to test how that works  judge i don't know i guess in fairness i don't know how i can fix the fact that benzene is carcinogenic and so people don't like to study it through volunteers that's absolutely true but at the same time there have been studies of pregnant women who were potentially exposed to think about the very question judge jolly raised with counsel before as i read the briefing to this court i was looking for the point where the the plaintiffs identified what the clear error was where did she actually or disregard to apply a controlling law and one would have expected a message to this court that said they skipped the smith study or she missed the jones study or something they really haven't done that and what they've tried to suggest here methods so even before dawber congress said that the principles have to be reliable as well further congress says that the expert has to reliably apply the principles and the methods to the facts of the case now it's hard to imagine a case where a scientist could apply a methodology appropriately but reach a conclusion that is at odds with all the published so in a way it's a little bit about argue about you know angels on the head  but but the analysis that the district court is assigned to engage in is not limited in some abstract way to the methodology it does look at whether the outcome whether the opinion is supported in the medical twenty third twenty fourth week are not relevant and under that round they're also not specific you'll call from they are commit case you a call from a night where barry levy was struck as an expert specificity is a requirement here one can't simply say because a cause of those one type of cancer there for a cause every cancer so the specificity here is lacking as well  that this is a little bit of a tangent and frankly i have the same concern that the court noted before most of the reply brief that we we saw from the other side really gets into specific causation concepts the pipa time case is clearly a specific causation case it's one where the court notes twice in the opinion that this parties agree that if this unsanitary needle that was injecting chicken parts for some reason the somebodies in the right and gave someone a sound and all infection that if in fact it was contaminated then yes it would cause that infection so general causation wasn't an issue similarly the curtis case which they cite in their in the written probably the hardest cases one where the court tells us that the defendants don't seriously challenge general causation and it was one more benzene cause some short term dizziness nausea vomiting  conservation methodology absolutely if you can accept that a causes b then you get the question of well let's see what they call it exactly or maybe something else that's etc so we don't really even get there here although at the same time i'm a little bit  troubled for example if now the palin is trying to rely on the autopsy to say that that somehow satisfies dawber a i don't think it was but b i think again let's get to the specifics of what the autopsy even tells us the autopsy notes in a summary an interpretation that affects of benzine exposure in pregnant women is not well understood and then when the autopsy gives a cause or any ology on page four thirty one of the record the ideology is suspect decreased utero placental blood flow so i think it's a little bit inaccurate to suggest to this court that the autopsy which says the causes of benzene crossing the center are not well known that the autopsy somehow would satisfy the plaintiff's burden to show reliable and relevant expert testimony there's no clear here and judge vance went through an exhaustive analysis she identified the methodological mistakes the doctor harrison made i was to suggest to the court that as to dr waters judge vance first found that the plaintiff had waived in the complain about dr waters because they didn't respond to the defendant's motion to strike but then she went ahead and addressed it and essentially waters function is not much more than a company to have the same core of  opinion so what we're left with here is a thorough analysis a thorough walkthrough of exactly what exactly what the night case indicates general causation specific causation but i think that even calls it a two step and under that general causation analysis judge advanced certainly shows her work shows the methodological flaws points out that there really is a true analytical gap  that harrison would ask the court to make too great a leap which is just what the supreme court disapproved of enjoying or just what this court disapproved of in the in the architects and in others the analytical gap to say i can accept th given every opportunity to provide plaintiffs were given every opportunity to provide the district court fulfilled its function in finding as it did and it's it filled its function in such a way that it is actually instance if that had been contained in our pleading that is it wouldn't have to be some sort of articles of incorporation or other proof or whatever else the presence of that in the pleading i think would have would have ended the you fill in motion to bring this full citizenship of this l l c was judge graves to come back to a point that you picked up on the differentiation between the cleft palate ok cleft palate those abnormalities usually occur early on in pregnancy the thoroughness the methodology of our experts was to look at all the disorders here in question and the fetal death that we are focusing on is indeed the death of this fetus the nomenclature here is worth reminding the court a spine and miscarriage is a death between before twenty weeks the medical term for that is spontaneous abortion after twenty weeks it's generally called a stillbirth but what came out through all the expert testimony in this case is that sometimes that nomenclature gets mixed up a little bit sometimes it's not followed completely or consistently the leap that we're challenged by in that mr muto pointed out harrison's problematically beef you will is applying literature from one trimester to another and the literature that we cite there can be no question that it repeatedly shows or ga and including specifically benzine above doubling of the risk and statistically significant the fact that this woman was exposed and to your point judge change whether or not women are working in the united states refineries as pregnant or whether we can go to the middle of the mall and pick the perfect study to match the facts here we have picked all of the studies that apply and there's no challenge by the district court that we did not those studies do in fact show the increased risk they show at the zoo study x you in particular goes through over three thousand women who worked at petrochemical plants facilities in china this is the literature is contained in our brief throughout pages twenty one to twenty six this is one of the earlier points questions posed to me where do i respond in the briefing to the criticisms of dr harrison page twenty one through twenty six it's consistent we point out that the results daubert this is a dahlberg case i suspect that when you went through the list of what we have  today got to you have the false claims act case and then you had the police case when we got a dog a case here today let's go back to dollar for dollar to ask whether the theory or technique the expert employs is generally accepted reviewing the methodology there's no challenge and it's not whether the theory has been subjected to peer review and publication that's what the analysis here is all about the publications which all have been peer reviewed again specifically as i'm taking out on the time i remind this court th dr bear's book chapter is about fifteen pages it contains one hundred seventeen references and is also very specific in certain sections to this whether the theory can and has been tested again we don't have that here we have epidemiological studies potential rate error that's covered in the statistical significant aspect and whether there are standards controlling the techniques operation the technique is should be once you get past the fact that these are good scientist applying in professional judgment the technique should party is going to bring them up and you're going to say well it was discovered the cross examination and therefore it has nothing to do with methodology and to me that's that's a big one to swallow i think i don't see anywhere in this record where there's a specific criticism of dr harrison for failing to apply normal epidemiological principles he says in his own report and it's contained in the record that he follows bradford hill ok he points out these aspects and the defendant challenges them throughout the i take it as you take the law and whatever and that's how it how facts are obtained and so then the judge looks at the facts that were obtained and you say if it was obtained through cross examination by defense counsel it's it doesn't count i'm saying that it's doesn't make any sense to me i'm saying that the parents are to do a direct and that's also going to count in helping the judge determine whether this expert can pass the gate keeping the gate the methodology was for a view the epidemiological studies and give opinions we've done that throughout throughout the case and it's in the record anything else should be left to cross examination that's where the judge committed the air that's where the judge overstepped her function will seven o two is as i wrap up as a rule of admissability rather than exclusion there's no aspect of darth that goes to the ultimate question and finally as this court has repeatedly stated questions related to the basis and sources of an expert's opinions affect the weight of that opinion to be considered by the jury thank you underscore your