it began with the argument we thought of a good idea to get the lay of the land here we know that there are motions to consolidate which we have not granted but we may and are there are there other counsel in the room that  have cases that are also affected by the same subject matter know whether you're involved with them or not yeah yeah and and if defense counsel of have an interest in this is well for instance i want to know well there's i know there is a panel that has other dismiss and that's what it would be so yes there's for sure the landis group of cases i call it the present group of course there's two there's two groups that were consolidated now athletes of those cases also understand that there are four additional cases that are in the pipeline my firm has personally not involved in as overseas but there may be other defense counsel your guy are involved as is anyone here involved in those other cases that's not necessary resolve these cases when i say that resolved in the way that appellant's plaintiffs would be prevailing here in this court it's also not necessary to go past the abuse of discretion standard their standard can be used here to resolve these cases are you saying that a judge or a brando did not need to explicate under pulis any more than he did i'm saying just the opposite that that is so you are saying that a judge in this situation his power is limited by all this his power is limited because poulos applies to all cases not not correct that's correct ok so i'm saying what presidential opinion of ours says that pool is applies in a motion to dismiss context in a forty one b context who was findings are required and certainly one case that i would point to is the decision in united states of america versus eight states that when there is a dismissal on the merits such as here in this case involved the discovery violation effectively  in that case the six factors had to be weighed in the court criticized the district court for weighing only four of the six here but there was no findings at all on the pool as factors another significant and you're saying that was the million dollar case was a motion to dismiss yes i have to go back and but what about that i'm sorry i didn't want to interrupt the question here but tell me a bit about the notice why why were your house here a bit a bit about the i'm sorry  being on notice on the act over notice that you were subject to there's no question that there was notification that you know twelve need to be met that's that's not the concern here in terms of our our position we're not saying we were not on notice of what we're saying is we were on notice of a particular standard that existed originally started in two thousand and seven was changed in two thousand and nine that was a standard that was being satisfied when these submissions were made when the order came down in november of two thousand and eleven which is the subject of this appeal the basis for the dismissals that order created certain changes and also difference in the standard for several that november order was explicit saying exposure history required right and the motions were the the bulk of the motions were filed thereafter were they not so that some of these motions just requirement of an exposure history that was one change another change was to require a finding of of impairment the problem with these changes was that they're still not well defined because exposure history has many different standards in medical science what do you think it exists but i mean you've been one of the disadvantages that i have as a judge is i don't live and breathe here that's another very best us cases but you won't do what is it what when someone says you need complete exposure history in order diagnose in order to identify causation in the context of medical parlance and proceeding with litigation what does it mean that's a jury question typically that's the first thing it's a fact it's a fact issue it means one would have to prove you're exposed to a certain product or you have to give a context on you right and that that comes down to the specific defendant's these the age of twelve orders not about proving a case against a specific event  about whether there's a medical diagnosing report sufficient to establish an asbestos related injury it's a medical diagnosis report it's not a detailed occupational exposure history such as you present to a jury defended by defended and the standards that are looked at it referenced in judge reno's opinion he doesn't adopt any one of those you references that the standards that that standard is one of the many standards that can be used by the physicians it's really dependent on the physicians as to which standards they want to go by i mean are you saying that the submissions you had on file that you thought were in compliance with you know twelve were exactly what would have been required by virtue of pages thirteen fourteen and fifteen  riverina november fourteenth order i'm saying i'm saying if you if you look at what he said about media and exposure history yes these are meritorious claims that's one of the pools factors that question is are these  you don't have you concede that you didn't have adequate cooperate with us we didn't yes we did not have causation letters we just were relying on the allegations in the complaint which we have been contested of lung cancer being caused by asbestos  want to point out one of the case in there which is th is the function of the appellate court to determine if the court properly balanced food factors and where the record supports its findings here the district court simply did not undertake any ghoulish balancing although some reviewing courts in the absence because certainly again within his discretion judge would be no can can make specific findings under poulos and specific findings as to which standard is actually needing to be satisfied cases that we're dealing with and you look at you look back over time the merits of the cases may not be as good as they as they need to be for going forward for trial because the age of many of these cases these cases many instances been pending for fifteen twenty years they may not have met this standard of of impairment if you treat dad is a requirement in his findings in november well what about we have three plaint minard what did the judge do wrong in those cases in those cases the medical records show that there's an impairment or in the case of  you don't have that and the other two that's that's that's correct the other two are or are strictly on the lung cancer basis there are meritorious claims under pulis that should be set back because if you balance the factors you're saying with with bricks and brzezinski you did comply with the ministry of order number twelve right we're saying we did we did we did comply to the extent that these people have lung cancer we were saying though we did not have the causation letter under twelve you can see that at the time yes why and why doesn't that was the deal because if you did the only thing that i would say on those two judges is if there's if you look at the findings for the the pleadings alleging lung cancer you look at the pool's factors these gentlemen had m claims they had histories of asbestos exposure and they had lung cancer if you apply the helsinki criteria that would be a sufficient basis for causation but and so the polish factors  cases are on appeal here because of the failure to find the push factors in that group in our evaluation of these cases being meritorious cases that should go forward for retaining all those other all those other cases that didn't survive the poor specters were not applicable i'm not saying they're not applicable and i'm simply saying that it would be futile to bring all those cases to this court based on the judgment  firm had and that's the function of a zero twelve is to screen out a lot of cases where something can't be proved so a lot of them were challenged on the basis of a lack of exposure history and were probably are not challenging the judge's ruling i'm not sure that we my seventy some cases that were dismissed in november i'm not sure we contested every one of those cases i just don't know and i don't know the record on these twelve and the general history of the comfortably within the district courts broad discretion to marriages docket fact we think it's within the essential discretion that the district court must have the marriages document docket particularly in a proceeding like the one that this appeal arises from the asbestos in v l which had hundred fifty thousand plaintiffs in it in two thousand and seven which had over eight million claims but all the more reason that an order of that kind should be specific medical report it must be based on objective and subjective criteria and it must be sufficient to withstand a dispositive motion by two thousand and seven in the aspects of the geisha really long before that what that business but this group and it's not even this group as as one of your honor's mentioned earlier scores of these cases were dismissed and not appeal they were dismissed for the grounds that the twelve cases that we're hear about today were dismissed by the same lawyer by the same judge in the same orders and those cases were appeal but there's even a better instead explaining applying a zero twelve what this means is you've got to have a complete income for his if i can facial and exposure history and so from that point on certainly these so you are even mime that that functionally although these are different plaintiffs and each one is entirely his day in court i'm not making that argument for our purposes here today though these cases are functionally identical they all suffer the same problem they have different names and they have different facts and some instances but end of the day they're dismissed with the exception of the brits brezinski cases which i'll speak to him in the better word term of art loan power and orders as one of his tools for managing the cases without that what you have is what you what you would have with this circuit would still be burdened with is what it was burdened with in two thousand order like this but let me understand you say you're saying that pool this applies but it really doesn't have to be performed in money and i'm not saying that at all i'm saying just a ring of guys exactly right and what he wrote about those he says there's no magic formula under pose he says here are the pros factors and therefore he then makes findings which are relevant to those factors for example he talked about the so there is no question but that these plaintiffs these lawyers knew what was required there is no question from from the a twelve order a zero twelve i would submit to even as we stand here today there are not compliant reports now had there been a motion to supplement in late november of two thousand and eleven maybe we  different case but there was now here's another point this is critical an argument sort of weaves its way through the brief to through the point this penalty phase and was a certain extent mentioned inhalation of as best as five years and if we take the jigsaw approach and pull in pieces from everywhere we don't get that we don't have that assurance of reliability  that's not sufficient now the point is not sufficient that there's something in the record it's what is required according to your view is that the doctor have had it as part of the diagnosis  sorry i'm sorry and as i mean the the peo twelve's is very general but the november fourteenth article refers to the standard of a diagnosis as requiring absolutely so i think it was not that general but certainly the november fourteenth order is is painfully specific was painfully specific seventy vice you didn't appeal by the way just did not submit is part of the area twelve submissions that medical or with a diagnosis of an asbestos related disease this is outlined in our brief but just to address something that was brought up for earlier and later in the district court but not it's in response to twelve but none of those materials were either submitted a response you know twelve or didn't or did they contain a comprehensive exposure histories of error is still honor let me see i just have one quick question is it your contention that we should we should view the reports of  forth a medical report requirement we then found motions to dismiss where that requirement was not satisfied from i was a hearing on those and i know that there are certain screeners that  there was one case the duffy case where a supplemental submission non compliant my view but was made so i don't really think the issue is this point i don't know what would have been and frankly would have been the case  meehan but certainly they knew how to supplement if if they wanted to they just did and so we're left with what what ayo twelve submissions there are one one final point all of the stuff that's regarding mr michaels was not part of the a o twelfth mission so for example the iraq story sixty one not an a o l submission there were medical record it exerts to sixty two to sixty six submission and i believe that's comprehensive as to decisions that were made on mr michaels that is only a fraction ok that's not clear but more generally judge will bring decline is the sixth who is fact there are five of yes and even though a client could conceivably be meritorious there are circumstances in which either a party or his lawyers on all the procedural safeguards in procedural karmas that the courts either in an m b l are just in a regular case might impose well that may be true but somebody doesn't somebody need to say that that these are adequate and would either be us or if we can do it from the record or the district court on reno i think the district court did say that in its november order as it applies to the marketplace as it applies to a regarding the factors enumerated in the pools decision so it is it's again another statement that the pool is decision is mandatory and these are not just massed courts of of some small amount of value here people have serious conditions and that's one reason why we've got a small group on appeal that has significant value and people have lung cancer and they die from it and they've got to give you an asbestos exposure that's the importance of this group of cases but if a lawyer doesn't come forward with you know sufficient showing i mean that happens all the time a lot of meritorious cases get thrown out because the lawyer has not complied with whatever he or she has to comply with and why should we not say well the november you know he's the march situation really follows form to november so the judge doesn't have to you know repeat his opinion every time he dismiss the case  that aspect of it you're right but we are questioning again the who is findings are missing here in upon even net that november order of two thousand and eleven of judge rubino these schoenfeld in the m t l proceedings in my law firm's cases the defendants drop any challenge to him there was a series of proceedings and eight at the end of it all just dropped the challenge to his abilities so we have causation reports and  the sufficiency of those reports if that's if that's to be evaluated in terms of their meritorious this and other factors under poulos that has to be done let me give three quick examples of these cases work as an asbestos worker meaning holding the product in his hands every day for a period of thirty years he was diagnosed with underlying asbestosis that case has merit wilhelm or stafford case against us the minister and victim he was testing asbestos rates by machine a causation letter was submitted for his lung cancer on a motion to reconsider it was still denied or his case was still dismissed he had bilateral asbestos disease in this industry in physician records he had fibrosis he had plaques on both sides these are findings of asbestos related diseases hoarding for the medical records when the causation reports mr he had of fibrosis he had asbestosis he had bilateral calcified last thirty three years an electrician insulating electrical furnace is another arrest best look these are in his records he also has a causation letter for nonmalignant condition these cases require the findings under  so the and my correct and you could say notwithstanding the standards set forth in the november fourteenth order that th us i e the judge thinks you know the diagnosis had to include that exposure history in order to be a valid diagnosis aren't you in effect hand you know kind the doctor would not form a causation opinion if there wasn't an exposure history i can tell you that but as a test that's has to appear doesn't have to be apparent in the diagnosis that that was done this is a medical diagnosis report and these diagnos reports do state the special six mosher history in a way sufficient for the physician to make the connection they do state so you're saying if it's adequate if the report says that somebody worked as a plumber for thirty five years