my name is david ball on behalf of plaintiffs appellant cynthia and robert maybe with the court's permission i'd like to reserve three minutes for revoke very well the district court dismissed the maybe's americans with disabilities act in fair housing act claims based on its application of a toxic tort causation standard that's directly at odds with the remedial purpose of these statutes crafted to protect the opportunity of disabled americans to benefit from the services the public had to tease there's only one element of their f h a and eighty eight dollars claims issue on this appeal and that's the necessity of the accommodation they seek under six circuit precedent under these statutes showing of necessity requires a simple but for causation showing but for the accommodation they seek which is an injunction barring the absence county engineer from using asphalt containing chips on the road in from their home but for that accommodation is made he will likely suffer the debilitating effects caused by i were dealing with out of a one mile section we're dealing with one mile in either direction of her home so it's a two mile and if i'm not mistaken it's about a four and a half mile road what is individuals to use public services and it seems to me your claim is if they pave this road she'll have to leave her home and her home is not a public service so where is the where is actual connection actually doesn't seem to me suited to that task right the problem is that well the service is the road maintenance program how was the athens county engineer going to treat the road in front of her home because of his intention to use chip seal in the way in which the volatile organic compounds off gas from the chip seal it would reach or in her home a few one hundred feet of it for it so yeah but her home is not service itself and  she's not she's not making that claim that she can't use the roads which i could i guess concede would be the services of the government she's she is her corner seems to be she just wants to be able to stay in her home she never goes outside so  addition to that but our position is that it's the service of the road maintenance program that has a direct impact on her both in her home and her ability to travel to and from her home as she has in the past when she would seek medical it's not temporary that's that's in a sense the problem it's a problem of magnitude and duration so the chip seal that would be applied on this two meals two mile stretch would be about eighteen thousand gallons of basque asphalt containing liquid and the off gassing would continue for weeks and months so she would be debilitated for that entire period that's going to be true that's why it started with the st question that four and a half miles of road three miles implicated such as that can be able to use the road at all if that's the is that going to be able to use the other other than the two miles that this is going to be giving off these gases and everything all of that there is a another connection there are there are other roads branching off that she would be able to use even if that one section she's not not able to travel in that direction but what is the testimony of the experts that was excluded that you your you can tell your client contends which show this but for causation short there were medical tests performed on ms maybe she was tested for sensitivity to petroleum derived ethanol and her dr lieberman testifies that if she sensitive to petroleum derived e she will also be sensitive to other petroleum products like asphalt there were some testing at dr lieberman's practice showing that she has compromised abilities to detoxify there was a genetic test that also shows her inability to detoxify like like many of us are able to do her treating physician locally there dr singer ordered specific lab tests  dr lieberman has a standard process for evaluating new patients she stayed in his south carolina area for about a week in one thousand nine hundred and ninety and was thoroughly evaluated by his colleague dr shear she has twenty years of a very clear pattern of temporal correlation between there's asphalt paving even his little list some pothole patching on on her road or within approximately a mile there are other roads there approximately a mile away every time they're doing the asphalt patching sometimes she doesn't even know the patching is happening she comes down with this same unique constellation of severe symptoms sensitivity and it seems like the courts have not looked favorably upon the admission of experts who are going to opine that multiple chemical sensitivity is going to cause problems so i can i got a district of oregon case here so the court's knowledge no district court has ever found a diagnosis of multiple chemical sensitivity to be sufficiently reliable to pass muster under dauber and there's a very long string cite and this was in two thousand and two  and i continued to find cases up through two thousand and eight but then i haven't over the last past decade there hasn't been a lot of case law on this so i guess what since the abuse of discretion is the standard of review for the admission of this expert disk experts are going to opine on multiple chemical sensitivity how am i supposed to find an abuse of discretion with that case you mention two thousand and eight that is the key date that is the date when the americans with disabilities act was amended in order to clarify that expert testimony would not generally be needed in order for someone to establish their claim i brief that very issue in the in our motion for partial summary judgment below as well as in our opposition to their motion judgment that case you're talking about from origen organ it starts with a g i don't have it yeah there are cases like that up to two thousand and eight it's a very bleak picture but when the amendments act was passed it seems that the district court's got the message and after two thousand the way it looks to me is that typically dr challenges are not brought to medical testimony about i have a patient here's how i diagnose the patient it's really typically not done here it was done by applying this toxic toward causation standard and that's the abuse of discretion it's really impossible for ms made to meet the standards of the toxic tort causation standard there is a you have to show you concede you have to show causation at least in the abstract ok so i agree with you that tech type toxic tort this is a toxic tort case and you do have to but you if you didn't provide any evidence that her multiple chemical sensitivity was going to react badly seal you would lose you would concede that you have to present provide evidence that that will in fact occur i would say that the standard as clearly laid out in six circuit precedent is will likely occur so there are vast differences between the toxic toward can't causation standard which is the use reactions will in fact occur we believe the evidence does meet that it does show will in fact occur but the abuse of discretion by the district court was not applying the much lower to stay in a home to travel with the accommodation it doesn't say that there has to be this this drastic impact the best thing that i've seen i think to really capture what the difference is is that in the andersen vs blue ash case a b a and f h a causation case the court distinguish between accommodations that are absolutely necessary and accommodations that are necessary accommodations that likely will help that's the standard under anderson and smith and lead so if you can see that you need you at least need expert testimony even to prove the lower legal standard excellent question i can see that it was not a an abuse of discretion for the district court to require expert testimony i don't believe expert testimony is required on the under the case law i believe the district court could have gone with us based soley on the testimony of the patient  but i'm not saying that was the abuse of discretion just record required expert testimony wants to evaluate an underdog fine we think that there's two different questions or there's the question and then once you determine the dollar question there's  and that you still need to show reliability under rule seven hundred and two to get the threshold to even be able to use that to prove that reduced elements of the claim so it strikes me that you're still dougherty's different than the legal m m's in the district court said we have to show reliability in meeting the toxic torts standards we reliably rule in m c s says the cause reliably rule out everything else that's a differential diagnosis that's a toxic tort requirement not and i'm still back that may sound awfully elementary but i know your answer to the question if you put her in a nice hotel for a month while this was as payment would still be giving off fumes and so forth and then my question is once you get past this two mile limit the same condition exists so how is that accommodation solve the problem in her experience she hasn't been severely reactive beyond about one mile and that's something that the doctors of our value weighted when they believe that makes while that's one of the problems with all the experts all the said well all we know about this case is what she told us that's stips typical medical practice though is to base it on the patients history in this case dr malott spent five hours taking her patients history administered eighty page exam in question here so it was based on a lot of solid medical practice other problem is it's easier to list the things she's not allergic to and it is  things she's allergic to that's unfortunately the case for it's very hard to isolate the variables in this case and that's another reason why the toxic tort causation standard doesn't work but it is possible to isolate that this accommodation would  good morning your honor may i please the court my name is molly quinn i'm counsel for the apple e the athens county engineer i'd like to just start out by correcting a couple of statements regarding the record initially and i believe the record reflects that dr malott her proffered expert examined outside for only a two hour period and i believe the testing that appellant is relying on in this case was limited to testing performed in one thousand nine hundred and ninety nine by a doctor who could not recall if he ever saw her in person regarding placement  petroleum based ethanol under her tongue and her physician freely admitted that that could have changed within the nineteen year period since this litigation began i also think it's important to note in direct contravention to  statements that none of her experts have been able to identify a quantity that is harmful to her they have all stated that it's based on the total load of this environmental science and i believe that dr lieberman has testified that she could become reactive even outside of the mile and i think that in hearing this this just goes to all of the panel's questions that i just heard and that is that miss matisse case has a problem on both ends of the spectrum on the front end there is no science behind her attempt to establish causation and for that reason it doesn't matter that the district court required general and specific conservation as opposed to applying about four tests and that's because to point well i i don't know why the case lines in two thousand and eight but i suspect that it is because multiple chemical sensitivity is best described as a description and not a diagnosis and the total lack of ability to ground this condition in any kind of scientific method or any kind of objective objective analysis is i think what has has steered people way from trying to route that as an issue it's a description without a diagnosis there is almost there is no way to test for it her experts haven't it and when there is no way to test for it it's very difficult to establish the causation standard that is required under the ada yet as well as the f h a  combination the necessity of the accommodation as well as the reasonableness of the commendation and the case law from the six circuit has found that the equal opportunity and the reasonable this inquiry are akin to a causation inquiry and i think that the court can best articulated this and smith that the plaintiffs does need to show that the proposed commendation will ameliorate the effects of her disability and miss matty cannot demonstrate that and i think perhaps the most persuasive evidence as to this is that during the pendency of the litigation at the trial court level and that was from september of two thousand and fifteen when the injunction was issued to october of twenty eight teen when it was lifted miss matty only continued to become sicker both based on her own testimony as well as the testimony of her expert witnesses so we would submit that even under a standard but for consultation there is no evidence that this proposed accommodation and i want  things this will only make it worse is that sufficient causation showing just out of a major work i don't believe it's sufficient without expert testimony to demonstrate that it will make it worse in the form of some kind of medical evidence articulating the objective ject of medical science based on a differential diagnosis test that it will make her worse if the injunction is not in place and the articulation of what is making her sick even just today i heard a new articulation of that that it is the asphalt and chip seal and the record is replete with references to the fact that it's asphalt it's chip seal it's volatile organic compounds it's a variety of factors and even by d lieberman's own testimony her problems are not just limited to asphalt there is no evidence that a misuse of asphalt will help her it's really based on herbicides and pesticides and other triggers as well and i think that based on that evidence they don't they do not meet the causation requirement that is that is president i would also like to just touch on the fact that the  record and we would submit that there is no abuse of discretion in excluding the proffered medical experts and as the sport has noted almost every federal court that has addressed the issue admissibility of m c s under daubert has found such testimony to be far too speculative to meet scientific knowledge and this court did so in the context of a social security disability appeal in the case of buxton beholder for those reasons we st met the m c s is that issue what do you conceding m c s is just a plane there is still no evidence of harm based on the substance that the county engineer seeks to use on the road or any evidence of harm based that the harm will be ameliorated based on an alternative substance being used on the road and i would just like to note that the application of the toxic tort standard the record does reflect that miss mattie's complained of harm is prospect in nature the record states that miss mattie testified my husband and i  doctors have made him and that's just made the athens county engineer aware that medical harm will happen if he puts ships sailing and he has decided to pursue putting ships sail and thus that will cause physical harm if he continues down this path and given the perspective nature the experts lack of a methodology and lack of the application of that methodology to the facts at hand maddie's physician dr singer indicated that she relied soley on reports from miss matty as well as a letter from dr lieberman and under the case of taylor b heller expert testimony may not be based on the opinions of others dr singer also admitted she had no evidence that miss mattie's we can state was based on the use of chip and finally perhaps most strikingly dr singer admitted that she had other factors that she knew were contributing to miss mattie's weakened state and that was an anemic condition a vitamin d deficiency as well as potential gastrointestinal issues so wonder a differential diagnosis test or simply understand her constipation there were other factors contributing to the objective symptoms that this patient presented that dr singer admitted had no relationship to chip there was analysis done of cost and i i believe concrete was extremely cost prohibitive and would would have been wiped out the entirety of the county engineers budget for for several years  and as to the practical efforts made to accommodate the made the record reflects that a neighborhood meeting was held by the county engineer the neighbors were welcome to attend members of the community did attend including the school principal as well as the school bus driver and folks got together and tried to figure out how they could accommodate her how they could help and following that meeting it was determined that based on the kind of evidence presented there was really no way to sort of control for all of the factors that affected miss me and i think this is very important to note the letters that were submitted by miss mateys proffered expert dr lieberman and the county engineer relied on change over about a ten day period in the course of this matter and that is from the time that the meeting was held until the time that the preliminary injunction was issued and i would just note that the september  and fifteen letter authored a mere six days before the ultimate letter requested only that miss matey be contacted regarding activities on the road did not say avoidance did not say you cannot pay this it requested only contact and then you will see in the record in your ten days later there is a statement that activities be avoided and the testimony in backing up these these letters that were submitted to the county dr lieberman who had been treating her remotely for a twenty year period not having seen her in person requesting a letter for asphalt and that is the st mention of in this record and we would submit that the district court did ability to diagnose a condition is not the same as the ability to determine cause and causation in a scientific manner and so i think that the letters were there and there was some practical inquiry made to see if  some assistance could be done i think it's also important to note that they requested relief in this case is an injunction prohibiting the use of dust suppressants or chips  on the road and it's it's it's rather broad it's for a two mile area and again we have no evidence to support the fact that that will merely rate her condition and we have no evidence to support the fact that the laying of the chip seal caused her the initial harm and no matter how sick a person is you cannot force an accommodation where there is not evidence that the accommodation is according to those case criteria true there's no blood test you can't do a cheek swab but like other illnesses chemical sensitivity is evaluated according to of the six criteria evaluated her she met all of them sicker if you read the very next sentence in her deposition transcript which neither defendant nor the district court quoted she said it's that i've continued to become more sensitive about the truth her last that last testing  about her sensitivity to chip seal as if all the sudden when the trucks are getting ready to roll she scurried and all of a sudden made this claim out of thin air that's completely false there are so patient records right there it is in the two thousand and ten letter five years before he listed asphalt sensitivity it's document ninety one page three thousand one hundred and thirty four the practical solution is is there the world's leading expert alternative road treatment for situations where for whatever reason as paul has for cannot be used or as holds not cost cost effective is the expert that we have provided dr jones from the university california davis the district court didn't reach those issues but we have not only moved to exclude their expert for his clear errors in trying to say that it would be more costly but we've briefed the admissibility of our expert who has process does suppress and that's carotid you know she would react with their salts just like you salt the road in the winter she's also with her husband mixed up these alternative treatments and applied them to herself and these are medically no different than the so you used to take the the ice off the road and then dr malott interviewed his maybe about how she had administered these products to herself  in detail and found that she had done it in a scientifically valid way and it satisfied him that these products would be safe thank you thank you thank you counsel place will be submitted