an engineer not a blue collar worker always working on computers helping to design important parts of the external fuel tanks while he was there or shortly after he left he developed music and passed away also true that there are only that low level there is no safe exposure to asbestos in order to contract music the ileum of which our expert drafted his affidavit report to suggest that any exposure to  evidence that there was a whole lot of a specialist containing building materials built into the building which would have been common at the time however during that time that those building materials were degrading and  where the own air conditioning system is sucking in the air and then blowing it out for the rest of us to breathe especially mr williams that that particular area was degrading that that spray foam insulation was supplied by the because as i've mentioned before there is no other way to get music ileum and it's causative extremely loving understand so the previous part is that there's this substantial factor you have to link up right and so that to us best is produced by the particular companies or was provided to us in discovery it accepts responsibility for that one of the arguments that mccarthy makes is that it was unclear that we were that was talking about this particular nasa facility the brochure actually suggests that  makes note that it supplied insulation to three different nasa facilities so including this one it's clear that it that this one is there in addition mccarty has provided no contrary evidence for us so even though  a record could go back and tell us if there was a different facility if it wasn't this facility or if they had provided something else and if the brochure had been printed incorrectly for instance but they make no argument of that they just said the brochure is unclear the brochure says we are in thermal insulator for this and thermal insulation in this case is this sprayed on what's sometimes called limpid the spray foam so it degrades very quickly and of course mr williams as i suggested was employed there for many years so it was degrading by the demonstrating that they were providing as best as ok you know let's talk about what i see is the really tough issue for you which is the jurisdictional issue you're aware of the case law that says you can't create room for the district court to enter a fifty four b this late in the game or are you in that zone where the district court can do anything and it's and we don't have  a very conservative way to go about doing things and i respect that in a trial court let's let the st circuit decide their own jurisdiction and not us i get that but that's not the same well let's put it this way that gets us back to this question which is are you in that zone where neither court has jurisdiction the district court had no jurisdiction to enter anything because everything and been dismissed long ago and we like jurisdiction because of the fact that these were dismissals without prejudice that then were an effort to create appellate jurisdiction where there is not well your honor i'll answer that in a couple of ways the st thing is when we requested the dismissal we did not request a dismissal without prejudice we requested a dismissal for the purpose of preserving our appeal rights which was in our request and in the court's order so part of the question about a rule fifty four dollars b when while forty one will say if it is silent we would assume it is without prejudice the fact is it was not silent it did not say it was dismissed with prejudice that those remaining defendants were dismissed with prejudice but they did that it did say that they were dismissed for the purpose of effectuating an appeal and preserving  our appellate rights against the defendants was it isn't that exactly what our case law says you can't do i mean you you can't unilaterally decide to skirt around fifty four b by agreeing hey let's just agree to drop the rest of this case so we can go see what the th circuit has to say about the main point point instead of points b and c i mean archaic ok so maybe wrong but you know the three of us are bound by a for better or for worse and it's pretty longstanding two thousand and thirty years dismissed without prejudice to create appellate jurisdiction when you do it silently like dismissed without prejudice when you do it affirmatively hi we're creating appellate jurisdiction by dismissing that doesn't strike me as helping you well know i guess what creating appellate jurisdiction intending to never go back and so you saying the silence is not saying with or without prejudice i'm not saying either silence would be not having any  at that point what was looked at was that the word with prejudice was not used and the request and the border were clear that the purpose of the dismissal was to end that case entirely that the thing that we're trying to the courts are trying to assume and you would have a good argument all i ever said was with prejudice they would've made the argument it was he would have said it wasn't and that would have been a debate so me that's the reason why this stuff matters certainly your honor but it was clear from our request i think it's clear from the trial court because the trial court was willing to go ringback back for us and try to alter the judgment and and create new judgments for us indicates that the trial court understood what we were trying to well let's talk about the when do you then take the next step how much time elapses before you do something prejudice with for the asking for the rules of the judgment which the court granted understanding that that was its purpose and our request all along if the court had believed that we were trying to get the nd bite at the apple the district court would not have assisted us in this way and i would suggest that part of the issue i mean this happens this is happened frequently where courts where a judgment is unclear for one reason or another and it's able to be revised and that's essentially what the court is doing here is revising the with clarity what was what had happened previously of so again i have it and i'm not sure i think this is a good system that we have but it's a system we have which is that the dismissal without prejudice and  but then doesn't give us jurisdiction then how can you get back to the district court without a rule sixty can just show up you know tomorrow in a district court that ruled in one thousand nine hundred and ninety and say hi would you please give me some further relate you have to bring a rule sixty and under you something and so on ok my saying that would work but that's how you do it so how do we even get the district court back in this business here without  are two answers to that one is i again i think that the district court was attempting to clarify what it previously attempted to do the things that how can the district i mean i can't just wake up one day and go clarify something i did ten years ago i got to have to do that i think that the district court can do that there are cases in which the distinction just wake up one morning and go you know what i think i will clarify that judgment i wrote years ago yes your honor what is the forty for that  continued to negotiate they thought it was a with without prejudice dismissals the parties continued to negotiate and the district court said no no what i meant to do was have a deal with creditors in the district court went back and was able to revise how did that come up what was the mechanism to get the disc because i might experience as a district or stone just wake up one day and start looking at their old cases that are closed so something happens what was that something ok but the point is that the district court clearly believed that it was dismissing this case with prejudice so that we could appeal it because they continued to go back and try to achieve to give that this court what it wanted so that we could proceed with the marshall case which defendants heavily rely on the court looked at with the intent of by the district court and by the parties before making that determination the intent of the court and the intent of the party is importan and when it is not silent i mean although we did not use the word with prejudice we were not silent we asked specifically for appellate jurisdiction meaning we want to proceed with appeal we want to abandon everything else at the trial court and proceed with appeal but if even says a lot more volumes more it's a trap it is a trap it's a it's a trap that of attorneys unfortunately can find themselves in many situations louisiana has a one year prescriptive period for tort finally torts it and if you go fifty four certification should have been secured before dismissals without prejudice and of course we know that that happened was the point of our rulings and williams hearses to decide if the district court couldn't fix the problem securing a pretty it maybe the answer to your honest question is at at that particular stage out i don't think the finality travel argument was urged to  circuit so maybe the th circuit in that room thought there was something else that could be done about the finality trap because it's a little bit strange to me so i want to make sure i understand the problem for us on the  th circuit is there's no final judgment because the dismissal is without prejudice in an effort to create appellate jurisdiction but the problem in the district court is there is a final judgment and they lost jurisdiction how can those two exist in the same zen or whatever because you don't have a final judgment judgment i understand the rule sixty or but that's that's that's through sixty two to correct that out that that's where there's a final judgment but what i'm what i'm pushing back on is the finality because i'm saying how can it be that it's a final judgment when we're talking about the district court's jurisdiction but it's not a final judge or time to call court's jurisdiction and it's the same case same parties how can that be you've got to have all the claims settled but when you dismiss a defendant without prejudice then that claim is not settled well i don't understand how you could have this netherworld i quite frankly i beg to differ in the sense of i don't know how a district court can render or have jurisdiction over a party that is dis they're bound by all of the circuit decisions that preceded the split but i don't know i didn't look at the data of it and forty eight appendix case i can only work when you see getting into various theories i can only submit to the courts that marshall is control over on his controlling in this case marshall not i was in your time and your colleagues will no doubt have more to say thank you is all right if we have jurisdiction or someone does then do you want to tell us why you all providing is best is to nasa doesn't at least get williams pas deposition when he was questioned about mccarthy he said he had absolutely no nothing to say about mccarthy and knew nothing about mccarthy even though there were brochures right and we found much for summary judgment they went and got i can't deny and i can't admit it there's no evidence either one way or the other i mean there's no evidence of us i was playing insulation and building but that they said that we or insulation contractor they offer not one implications you guys can say here is are you now folder from that here and we never did anything in building three hundred and fifty i mean y'all are the ones that have that evidence in your failure to come forward with that is i from coworkers other employees management you know how people go looking for the very thing you're asking about they had four years to do that and it just never materialized and chains question though and simply his burden ok i just wanted to say i look back at the williams versus t s i judgment i just dismissed for lack of jurisdiction they didn't affirmatively say render worry bandage is dismissed i have to go back and look at the record as to whether they sent it back or not that go ahead how come in four years of discovery you haven't found the folder that is the work you know the work schedule if you will of the company i mean and that's something you'd be digging was something that we were digging for as mccarty did never provided a deposition for us because their c e o was ill and so we never got any real discovery the discovery that we found resist the summary judgment by saying we need we need this c e o to get well or no your honor we were forced to rely on old depositions that he had given ok because he had a doctor's note  the information that we found was by digging hundreds of hours through all files out at the mishi facility itself because we had no access to and were provided other than this brochure no physical files from mccarty despite  and discovery and our motion to compel was denied and did i miss that in your appeal that you complained about that i don't think we complained about it in this case that strikes me as kind of big because there is an answer there somewhere i mean my experience is yeah people can throw stuff away but these are all files and i spent many happy billable hours going through these old files in various cases and the fact that label on my on the jumpsuit is there anybody like that here particular to a party remember that a lot of this was installed earlier it was degrading over time so this is a little bit different than an ordinary is this is cases where he's working year by  all stuff that was degrading over time so we wouldn't have necessarily seen that his coworkers didn't see that either they did see the remediation afterward and didn't have the contacts in addition at summary judgment stage i'll remind you according to the slaughter  we don't have to provide a specific instance of exposure we have to provide the fact that it's possible that the jury could find that there was exposure and we know that by virtue of their own bragging this limp it was inside all of the air conditioning deposition that he hadn't seen the brochure and then later that's how he came to make the affidavit was that we had shown him that particular thing but i just want to take the court back if you don't mind to the appellate jurisdiction issue and the rule forty one says to all of you and it says to the court that the district court is entitled to make a dismissal as it deems proper and as the court will remember if if because if it is the reason that if files a request for dismissal without prejudice and the court instead says i'm only going to grant this with prejudice then the plaintiff is required or the court is required to give the plaintiff the opportunity to rescind that request and either proceed or exceptions particularly where the intent is evidenced that we were not trying to be silent we were not trying to dismiss without prejudice our intent all along which the court recognized by writing in that the dismissal was for the purpose of appeal now i do ya want to get into what are we going to do with the other cases and all that we're going to talk about that here ok we're aware that thank you