and dan johnson and pursuant to the court's order we did confer before we came here today and the division of labor we worked out is roughly as follows i'm going to start off for ten or fifteen minutes talking about the durfy medical monitoring appeal and also about a substantial factor test for causation that's been briefed in connection with the buckner carlyle gold broom and a plea of appeals i'm going to hand off to mr haber at that point within the meaning of forty two us to section two thousand and fourteen q that therefore did not arise from a nuclear incident on the way there for a war not price anderson cla defendants having had the burden of the party invoking federal jurisdiction of the stablish in some predicate for subject matter jurisdiction in the district court presumably carry that burden at some point and the only way they could carry it would be if the claims arose from nuclear incidents under the act because otherwise subject matter jurisdiction as i think everyone agrees is absence so different one the court decided two things if that interpretation is correct that the claims are cognizable underpriced anderson because they do arise from bodily injury sickness disease or death in the meaning of two thousand and fourteen if you but one thing is clear for the district court to have issued any ruling on the merits in this medical monitoring appeal it had to have just subject matter jurisdiction somehow the only sort of basis for federal subject matter fourteen forty seven s praised better is stating a claim but as i understand the of what the district court did hear and i may be wrong and that's what we're reviewing here the district court said that under following berg that underpriced anderson there must be actual physical injury that there wasn't any and then the question was whether there was any other cause of action under state law and it said no  washington while but the fact is that the washington supreme court has not ruled one way or on the other on medical monitoring claims so that western district of washington decision is persuasive authority at most and so let me just record had before it was reconsideration of a motion to remand and although i understand that the court may have had in mind some mechanism where  because the same language that would define the scope of any preemption the nuclear incident one which also defines the scope of subject matter jurisdiction so that language has to be interpreted one way or the other if it's interpreted to include medical monitoring then seemingly those claims are not preempted if it's interpreted not to include medical monitoring and seemingly there's no subject matter jurisdiction and if and it's preemption arguments would need to be addressed to the proper tribunals with would be the state court on remand that's a bit of a pickle that we're here and if we were writing on a clean slate i would say claims for medical monitoring at least as asserted by these plaintiffs in this case and thirty are not emotional distress claims and they do not arise merely because the different plans have been in the of bodily injury sickness disease or death and that there is no double recovery because there's a distinct legal harm there is a cost associated with the prudent monitoring o for the onset of disease and the people who brought the need to do that monitoring about should and reason bear that cost even if no diseased at her eventually so that's the thinking behind the thought of medical back to the district court we should go and the next step i guess would be a motion to dismiss rather to stake a claim under washington  and in particular about the just records failure to give the requested instruction on what we believe was the governing causation test under washington was a substantial factor test i don't know how much i really have to add to the briefing here but i want to emphasize that this court's function of course is to predict how the washington courts would rule on this issue and causation of course is of the heart of this whole controversy has substantial factor been used in the or proved in the washington court system in cases other than the multiple defendants or multiple potential causes well i would say yes there's a discussion in the lockwood decision from the supreme court for example that talks about the appropriate kind of causal analysis to use i was in his bestest case name correct when going now i'm not a washington case but it was cited with approval and that case too involved as festus and cigarette smoking in the defendants and that case i take and pretty much the same position that the defendants are taking here that the only question should be the only function of the substantial factor test was to help out a plaintiff who couldn't tell one is not just of exposure apart from from another but if their own contribution to exposure of their own contributions to exposure taken collectively weren't enough that should get them off the hook in the smoking shouldn't can't and then you know court rejected that argument in that case was cited with approval and the fruit is now obviously toxic to situations are often involving as best as so you get a lot of his best as cases but in addition and the dog gets a decision not a toxic tort case to be candid that was a medical man that was a legal malpractise case so it wasn't even a multiple cause that you ation but it did contain an extended discussion from the washington supreme court of the settings in which the substantial factor test would be appropriate and one such setting and the court's view was that it was again one presented by this case where a similar but not identical result might have been reached without the defendant's conduct in general in toxic tort cases in some sense this is the sensible analysis because there's a long latency period that process is occurring in the human body that are not accessible to sensory inspection you don't have eyewitness testimony about what caused these diseases you have to go back after the fact and analyze it in a world where you can't conduct an experiment any longer because the causes of you have converged on one human body and the whether one of the toxic torfi users exposures played a substantial role in causing the injury so in a way you're always talking about multiple causes in this kind of case and certainly to a situation we have only one defendant who is alleged to have been the cause of a condition and you have various environmental or or genetic or other factors that could possibly i cannot stand here and the court my name is roy heber and i'm going to address some of the evidence three issues that were decided by the district court and they should be reviewed under the use of discretion standard the district court indicated have some confusion about this court's opinion in two thousand and two and the court stated quote let me explore that referring to this court's previous opinion you know i am not sure i understand totally the impact of it and then went on simply clearly double dosing is not going to be required so the court understood you know double those things but i don't believe fully understood the site understood the scientific but nevertheless in the face of not knowing what evidence could be given to the jury they struck the testimony of our experts that included all of the evidence not just epidemiological evidence but the biological evidence we believe that maybe one of the reasons is the court did not continue analyzing this court's previous opinion when you stated quote radiation is capable of causing a broad range of illnesses even at the lowest  been recognized by the legal and scientific authority you went on common sense alone mitigates against establishing a bright line threshold we do not believe for example that a person who has been exposed to ten rounds of radiation as a result of radiation this report stated it would be speculative to suggest that radiation levels below the forty rats can cause the diseases quote the witness may not testify that he could see no reason to think britton who was asked at his examination whether or not he could say anything about that study at one hundred rads his response was what's important here is that the study shows an increase at forty reds and that's all you can say about these data referring to the data in that one study somehow judge nielsen at the prodding of the the testimony suggesting that radiation exposure below forty rares can cause hypothyroidism is based on insufficient reliable data now what he was talking about w meeting because the district court did not rely on all of the data closing quotes and that cited in our brief page thirty three the analytical gap was the district court not considering all the data only considering the epidemiologic data the amber seanie court said it this way the district court quote failed to consider the entire record relied heavily on isolated data logic also is in not realizing that it makes no sense to have a forty red threshold last time i still hear we talked about the doubling dose and pointed out that you had two glasses and they were filled up with different toxic substances or different insults or different genetic propensity and here you had the picture george macdonald said you have to prove that the entire picture that they were exposed to even though that's not what it would take to ca biological testimony and biological data that establishes causation at low doses the jury was not permitted to hear that information because the judge believed that the only data that mattered was mathematical that and this court might want to just one of the major gap in the logic here by adopting the but for test the court did not consider the following and that is that high she moans disease the thyroid diseases occur as a result of multiple factors that can be working together you held last time around on this identical issue that when it gets to individual causation individual factors quote might raise the likelihood of disease at lower doses now when you have the but for test the judge was not able to consider that reality either radiation caused it or the stress of pregnancy with regard to ms wagner caused it he was not able to understand the stress and pregnancy reduce the amount of radiation necessary which is the reality is all the experts that testified said that the process things begin from one or two rads you don't need forty rads and it's not logically real to say at forty rods the can get the dos records as the bar of the modern products court noted quote cross examination which attempts to impeach by slipping hearsay evidence into the trial will not be permitted particularly in a case such as this i'm still in a quote where the cross examiner had previously succeeded in keeping out closely related testimony that's exactly what happened here the defendants were able to keep out the explanatory even if you have it does not set the bottom line threshold below which you can't get the disease this court noted it makes no logical sense to do that but that's what happened here the jury was not permitted to hear any other have a follow up question once the district court said no i'm going to allow them to do that did you ask to put before the jury the explanatory information on forty rounds the judge rule i would say yes we asked the court permit that testimony and the court said no after they had used it in cross you know before you know comments on forty arrests you object yes there was a district court overrules the objection and allows the cross examination correct my question is at that point did you say your honor they've reopened the door and they're putting on half already ruled he can't go on the stand we would have been content to do that and i think that's what maybe motivated the trial team not to ask for it a second or third time so it's good when you had a question i was going to respond to just  that you can get it under forty rats was what he says it clearly based upon the understanding of the biological mechanisms dr hill had testified about the biological mechanisms testimony is about that it is the capacity of the either to cause the disease and judge nelson did not permit written or in days they both wrote about this didn't permit them to testify that was in his mind the only thing he could look at were statistical epidemiologic studies and it was an abuse of discretion not to consider all the biological evidence they're going to  the other evidence or issues in this road second trial i understand time i'd like to start by asking whether there's any questions from the panel about the extrinsic evidence issue the so called jervis conduct issue but what's art what evidence prejudicial extrinsic evidence was considered and reviews the entire record and that it's a mixed question of the law in fact now the first there's really two issues here and one of them the issue you raised it does involve facts but i said this plaintive tried her claims before and lost another juror said yeah i read it to the defendant scoured the record and found some instances in which prior litigation involving hanford was reference those were listed in in the judge's order and that's those that's those are the references from which the judge determines they are something out there a piece of paper or something that that they could have gotten this information from improperly there's nothing in the trial court record there's nothing in the trial record in which either of those two facts were stated and certainly nothing in writing those two facts being that this plaintiff's claims have been tried and is is perfectly clear that it's not that is if you accept what the affidavit says and there's no no suggestion that one should not that it cannot be squared with the conclusion that the trial court reached because those facts are not in the record your client took the stand oh yes you know what was your client examined about prior testimony i don't think that that was no i don't think there are i could be wrong and if so i'm opponent will raise it but i don't think that's among any of the references are litigation that is the plaintiff's own testimony so you would agree if there was cross examination and your client was then asked in a prior proceeding you testified do x y z that any reasonable juror could infer that there was a prior yes but i also don't think that that is that's not the predicate that we're complaining of in other words  in it was raised in your dear that there was a proper track trial and there was plenty of information in the inadvertent references throughout the trial that there had been a prior trial if you take a rocket scientist to figure out if there was a prior to morrow she lost the cases are very clear that when you have specific information that was not presented in the in the trial court that that is extremes you can prejudicial if if you look at the case in some of the cases the defendant cited which used to be borg the case from this court where a policeman trial as well and there's nothing that the trial court relied upon that was in writing concerning any of this information about provocation it's only from testimony i think the question here right well the questionnaire said are you aware of any prior litigation about hanford net is the place the defendants a criminal offense were complaining that the jurors had heard about prior litigation concerning their co defendants and the court said all they heard about was prior litigation concerning the same subject matter they didn't hear as they did in this case that specific co defendants had been tried before and found guilty and at the core explain how that difference is crucial because where in the cases where that specific information is disclosed to the jurors it is prejudicial and extremes dictated to the trial it's classic prejudicial information that we don't allow in to the jury it undermines the very purpose of having our second trial in this case to have allowed the verdict supposing verdict of the first trial into the jury deliberations and the only other issue your honour's on this particular question is is that the standard of prejudice that must be proven once one concludes that extrinsic information has been introduced and it's well established that the court presumes prejudice i thought you were asking that saying that there should have been evidentiary hearing no i in this case we we don't contend that there should have been an evidentiary hearing unless the court disagrees with that this is not your fault that the standard of law that's right but and particularly now that it's been over a year since the jury deliberated we would prefer that we not go back in that manner because the question the only question we want to hold that there was outside information well i think that's established on the face of the affidavit and there's nothing to the contrary and then what the court is apply this presumption of prejudice which if not rebutted requires a new trial and the defendant's only argument contrary to that is not that they rebutted it but that that's not really the standard and they relied on this court's opinion in hard versus burlington because it did not actually apply that rule in that case so we'd submit that the court should remain and for another try i'll turn this over to my colleague for the remaining issues on this road tha illogical causation scientific causation or any other form of causation other than medical causation other tools might have been used to arrive at that medical judgment but in the end of the day the key witnesses in these cases where the medical doctors who appeared in testified and each of the court's rulings that we take issue with went to the heart of attacking our experts medical causation bolstering their experts medical causation and supplanting medical causation that their own expert dr schneider testified he could not come up with so the cumulative effect of the courts of an entry rulings was deprived in this rose of the central standard but here the evidence and what occurred is very clear i might stop here and ask if there are any specific questions before the bar and we go on to give examples of what specifically we are contending the court feel to do that was untenable or contrary to law to start with there was an exchange involving the defense expert between exposure to radiation and possible thyroid disease the court in front the jury stated that this was totally collateral for the issues involving this road and causation the court acknowledged it had erred in doing so it stated it made a mistake in doing so it instructed its clerks to draft and curative instruction then it refused to give that instruction on the grounds that this was like a baseball or football game in which two rounds could cancel each other out no legal tenet supports that evidence  rule one o five expressly recognizes curative instructions limiting struction support refused to give one so it left the impression with the jury that the medical position that was there supporting the defense washington irrigation versus sherman it's the general questions of an expert about the effect of a particular type of incident on a person in the plaintiff's condition or improper  improper aps absent evidence showing that the planes condition had in fact been affected the court in our case allowed cross examination of our expert on other possible causes and direct examination of the defen expert on these despite recognizing this rule of law and despite ordering defense counsel not to ask questions of their own expert about other possible causes without proof that they in fact caused the condition and despite their instruction counsel did exactly that and when we asked for a curative instruction the court refused to give it again without any rationale this time without any rational court used improperly it's dover gatekeeping function not to rule out dr hoffman's opinion entirely he found it scientifically unsound but to modify it by the court's own scientific sense so planning the expert himself supplant that let me wrap up quickly the two other things were you wouldn't allow us to withdraw dr hawkins opinion on p c evidence that was a separate opinion we should've been allowed to do  under the authority we cited the glendale case court refused to allow us to do it reasoning that it had been in the first trial so even though we could ever withdrawn it part of personnel were allowed in a new trial to choose what opinions of our expert please the court there's a number of ways i could proceed this afternoon first going with our errors or i could also respond to their errors my inclination would be to to raise our affirmative points that we're raising in our appeals unless the off the table holding that the defense does not apply the claims under the price anderson act as a matter of law second the court took the issue of fault off the table holding the defendants were subject to strict liability under washington law  holding that the that the defense does not apply your is a matter of loss quite odd because this case is really what the doctrine is all about dupont reluctantly agreed at the height of world war two to operate the hanford facility for the government for just one dollar and the contract specified that the plant didn't have any expertise in this and would have to follow the specifications set forth by the government perhaps most telling is the fact that after the second world war was over in the earl cold war and the contractor sought to expand the cooling times for the uranium which would have reduced the emissions of i one thirty one the coverage that you have no authority to do this the contractors here did nothing other than what they were supposed but what i'm saying is that somehow this doesn't kind of render the indemnification provisions superfluous type of government contract defense because the price anderson act applies a lot more broadly than just government contractors and of course not every government contractor even is going to have a there is no question and this really is kind of the that that the premise for the argument that they could not have brought the suit against the government directly so the question is when the government decides to operate the hands of the syllabi by asking contractors to do it rather than by doing it themselves people wouldn't want to go into this thing which is in the overall national interest unless they had some kind of a backstop so that if basically it requires utilities other people who are operators to get certain levels of assurance and then i is willing to indemnify the fact that the government is willing to indemnify where somebody is held liable doesn't mean that the government is there by lowering the threshold for what it is to to make somebody liable in the first instance that's the key analytical lamb case applied it in other words this is the first case that i'm aware of where the court actions as a matter of law is just categorically applicable here in other words again the issue here isn't so i didn't ask you whether this was the first case what's your best case for the proposition that notwithstanding the indemnification provisions or pricing andersen the government contractor defense is still available to a client i believe it's called the land case that that applied it but again i don't know that anybody has ever detonations so the government that congress knows full well how to say that the government contractor defense does not apply when it didn't want to do it didn't say that was generally true under the act provision of the act in the section regarding indemnification of government contractors that specifically says a government contractor and they not search any defense based on the governmental nature of the work in a somehow the inefficient provisions are basically coextensive with the government contractors that wouldn't kind of make sense to kind of have a government contractor defense but then why are you providing indemnification but they don't link up like that at all again both because the price managing that goes far beyond government contractors and not every government contractor it's a narrow defense i mean we don't intend that you know this is a huge broad sweeping defen is certainly procedurally comprehensive in the sense that it creates an exclusive federal cause of action increase federal jurisdiction to bring all these things in the federal court but it's not substantively comprehensive in the sense that it doesn't set forth substantive grounds for eighteen specific offenses and didn't include government contractor then you might say by negative implication there's a comprehensive ridiculous substantive scheme that's not what we have here  i guess turning then to the point though applies in space that the specific decisions that they are challenging here really are the government's decisions in wartime the government made the decisions about how long these slugs should have been cool before they they were taken out if the cooling time were lengthened you would have this problem because this my one thirty one has a very short half life so if you call this longer then it would have to take that but of course the government was forced to balance two very real competing concerns as the government often is there was a war raging and they want they want to have plutonium production come up to speed as quickly as possible important part of what was going on and in the in the later stage but again in terms of the specifics of this case and the wartime production these are the in this case it was the private decisions of course you wouldn't generally have the government contractor defense for utilities i mean the kind of people i think that situation and again you're protecting going back to two the purpose of the dr is explained in boyle it's protecting the government's discretionary decision making so just saying that well why do the contractors really care they you know they turn around and and they're indemnified but of course that misses the point that the government contractor defense does not protect them it protects the government moving on if i could just to to the second issue on the on the issue of strict liability the  component of that the district court essentially followed the district court decision in cook which rejected the decisions of four other circuits which have held that you cannot impose liability under the pricing or sin act for federally authorized emissions and so basically to affirm the district court on that ground with if you create a lopsided circuit split the defendants see the plaintiffs here don't really push that point very hard they just kind of refer to cook and say it's a better assertion because certainly to decide that requires a lot of factual development of of exactly what orders were given and what the status was for approvals and and that was not something that the district court was entitle to anderson act and that means basically that's the only value federal law that that applies and anything else including safety standards any other source of federal law is not is not does not a indifference to state law right but when we don't have that that here what we have is the actual standard under state law for for judging this particular act to get the whole activity of nuclear reactors and i just guess i don't see why that would necessarily why we would have to under your theory  where is the federal law that you claim it that we're claiming is preemptive and the other side comes up and is saying well you don't have you on like the other four circuits don't have to know what you're saying are the entire federal the government contractor defense for respect is a federal law that has the binding force of law in fact in the moral case itself it was that the federal government contractor print defense prevented inconsistent state law there was a lawsuit against the helicopter manufacturer in  our point here is that their assertion on the other side you're on is that you need a statute or a regulation to have the preempt to have preemptive force that is not true as a general matter of law that that the only federal law that the only federal directives that can have for into effect must come from congress i mean there are different sources of federal power you have congress has how it can exercise federal power but the president can also exercise federal power legitimately if to the extent that the president in  case is a good example where an executive agreement can preempt state law if it gets it gets complicated drawn or light and i think our point is certainly these kind of complicated legal issues whether or not the specific federal commands or approval other but she did not file within three years of being diagnosed so she would be time barred under washington long is no questions a three year statute of limitations but for some sort of told him the district court here advocating we understand that there's a waiver issue here in the sense we did not make this specific argument so your honest question is absolutely a very fair one i guess the one thing we say in the context of this particular case i mean it's a purely legal issue and the whole the whole nature of the bellwether process was it was done the whole mechanism of the bellwether process it was done really in order to bring be other potential class plaintiffs whose claims would be time barton hers wouldn't absolutely your honor in other words there are many other of the of the plant many other among the plaintiffs who filed individual lawsuits after more than three years after they were diagnosed so they would need american pipe tolling and so again it would it would give guidance  we raise i'd like to move on to address the issues the other side raise and then hopefully i'll save enough time to still be able to come back to to have some rebuttal on these affirmative issues just very very quickly on the dirty case that mr nor her started no federal jurisdiction or there is federal jurisdiction and the recent claims that there's obviously a third category where there's federal jurisdiction but there's no substantive climate in other words it is a logical flaw to think washington law there is no question that the general standard in tort law for factual causation is the but for standard it's just really a matter of logic you can't say that something factually cause your injury unless you can say that you wouldn't have been injured but for that event or that cause now and i think this is really important as you heard some such things that were inconsistent with this today they are setting up a straw man to the extent that they're suggesting that our position that you can have only one cause you have to show that a single cause by itself is the but for cause that is not true you can have a causal chain every link in the chain standard in other words works perfectly well in multiple cause cases you just have to explain how every link in the chain is itself a bug for is a necessary link in other words if you have a doctor who commits malpracti and the person who's the person on the head are considered to be but for causes and i think if there's anything i can do that would be helpful it's really to commend to you the restatement third of towards the proposed final draft of two thousand five sections twenty six and twenty seven that have very expensive commentary on this point and they really explain that multiple causes are in no way inconsistent with but for causation i you can't decide a whole case based on generic causation ok you need to have the individual lies in court to which you say you're entitled and you can attempt to show that that your heredity plus radiation excuse me it was the fashionable cause of your injury but but here what they're really trying to do is what they're trying to do is say you know we want to say that anything that increases the risk should be considered to be a substantial factor just american tort law in general that the that the substantial factor test was created in order to address really a logical conundrum a very specific logical conundrum in the but for world which is when you have multiple but for causes so that you could say well i it's the summer versus types problem when you when you have to put the person who shot by two hunters and you can't prove that either very different way and say oh no it doesn't have to be we don't have that either show that it's part of a chain of causal links all we have to do is show that it's something that increased our press that is a huge departure from general principles of american tort law and they don't cite a single case of support that the manga you know case they cite which is a louisiana law case from the fifth circuit is entirely consistent with our view in the view that set forth in the the restatement over the restatement third this is a very radical change and again two of the plaintiffs in this case actually won under the under the but for test because they were in in this case in that they were able to ship to convince the jury that but for the exposure to radiation they would not have been injured so so again i just think that the restatement really explains that they take out of context and that their only response to this is to say well if you look at section twenty seven bring about an injury and any one of them operating alone would have been sufficient to cause the injury comma each is considered to go back to page eight of their brief where they quote what they say is identical never gets it just says if very specific logical problem in the in the substantial in the but for world but it doesn't generally push you into a brave new world where substantial factor alone is he was not able to give you a cite their briefs don't give a cite and in fact that was what their case was about they had people at trial they had davidson hill testifying that that you could have causation you can needed a p d logical evidence below forty rads again he said that that was what the district held this record held no such thing you all made very clear in your last opinion in this phase that you don't need at the logical evidence in these kind of cases a way the only thing that rumor was precluded from testifying about he could have testified anything in this report are not valid fact he didn't testify but that was by their choice the only thing that he was precluded from testifying about was extrapolation below forty resnick and that was not in other words the dailies in other words where you have an expert on the stand who has rely on another expert it's entirely appropriate to say funny that you are you a lot of his report but you know you didn't really come out as a conclusion that you did you so so in any event you know you can't possibly say that they haven't really made a serious case and this is the basis for revers in front of the jury well they also could agree up from written in front of the jury again they were not precluded from bringing in wattenberg at all to explain himself if you wanted to know about that but you did more than just ask him about who we relied upon the confidence in what i said there in other words ruttenberg her himself is the one who basically walked away from what he had what he had said about less than forty rats i mean the things we were cross examining them with were really face value but on its face there was nothing in that affidavit that was inconsistent with the intrinsic you want to talk at least briefly about the trial judge telling the jury during deliberations where it's kind of amazing what they're arguing here there is no dispute that the rules of the road in this case that if it wasn't in the pretrial expert report it's not coming in at trial ok and they even reaffirmed that point that object well your honor but  we we before trial that that was the rules of the world in terms of like what you're supposed to do they're basically saying they said she's not going to go beyond her expert report then she starts talking about fertile soils and we immediately start looking pretrial rules district courts according to case law generally in the circuit have substantial discretion but that discretion starts to taper off once evidence close and there are plenty of cases post verdict entitled to police then when they were trying to ambush us they were basically saying once we snuck it in and you just didn't you just to nail us quickly enough for having basically flouted this report order i mean that is a shocking kind of result that where where there's no question you don't hear them saying that in fact they were titled to get into that hurdle so testimony there's no question that they were not and all we were doing is before we interrupted the flow of the trial we do know that they were acting in good faith we said well let's make sure that that in fact this wasn't in her report so we're looking back and forth the next time that she started talking about her full cells we need to says whoa whoa whoa her of cells there was nothing about hurdle selves in this whole thing  and just one more step to prevent you when that was first inquired into if you were certain to ask on board or are you or if she had referred to that in a report was there well your honor i suppose the again we assume where prejudice so far i've been discussing i don't think there's any basis for saying it was an error but even beyond that they establish no plausible link between radiation and hurdle cells in fact the group in other words even saying the most peters was going to say was that they were hurt but in the absence of anything saying well hurdle cells is an indication of radiation that might have given the jury some framework in which to process foetal cells but there was nothing that would have allowed the jury to do anything with the hurdles help testimony anyway so court i thank you in the nine minutes and twenty eight seconds remaining available to me runners let me start with that hurdle cell testimony there was no objection on direct to the testimony about whether it was a marker of injury the question was asked again on redirect and there was no objection then either  not all defendants did far from merely refusing or failing to objective in trial they affirmatively invoked the testimony during closing arguments that sided in our grief then after the evidence had closed and the jury had become deliberating not having objected to these questions at any point during trial the security instruction that the jury was to disregard the evidence that they themselves had invoked in closing i don't think that a pretrial ruling the general that witnesses should stick to their reports in any way preserve this point and the defendants very well knew how to object because it went well and it was even arguable that any testimony ventured one syllable beyond the report a trial because the trial record is littered with those objections time and time again this is so that's the hurtful so i substantial factor there's been a lot of talk about what plaintiffs are trying to do and what would make sense and that wouldn't make sense i don't know what plaintiffs are trying to do except to try these cases under rules of decision as prescribed by the washington courts exposes were sufficient would have been sufficient by themselves to cause the disease so that's why we took it out but we haven't in the case of washington was an unbroken line of authority and every toxic tort case to come before very briefly on durfy we've had a new concept of how to interpret section twenty two ten today the new interpretation that we just heard is that if the incident caused injury to someone then any other claims involving that incident are committed jurisdictionally underprice anderson but again that matches up with us with the same language that defines the scope of any preemption if that that's been written about this is that in one thousand nine hundred eighty eight congress amended price anderson with the idea of giving federal courts jurisdiction over claims of nuclear places that had to do with nuclear stuff that happens there this is the language th shows and they're planning a list not to use that language to define the substantive cause of action but to refer people to state law to decide the action ability of the claims i know the course not writing on a clean slate here but i think if you cut through with us what's really true let me start with government regulatory standards before the nine hundred eighty eight amendments ever occurred under silkwood as explained by the court's opinion in cook which w i think everybody's general understanding was that the state jury there was a liability imposing you know compensating victims of nuclear weapons after the fact or one thing that might be in some tension with federal regulatory standards that prescribe the conduct of the operators before the fact but that was a tension that the supreme court said in silkwood we would we could and would live with the courts that have decided that the federal regulatory people want to treat prisoners and sometimes as though it's a carbon copy of the rules of decision act as though all it said were you'll apply state rules of decision but it goes further than the rules of decision that constitutes an exception to the referral to state law if it hadn't done that we might be facing a different situation but it in numerate so an exception and the exception is not the atomic energy and the exception is not federal common law the exception is not federally created doctrine generally it is such a section and there's nothing in section twenty two ten supports either the use of regulatory standards to define the duty of care or the contractor difference we don't need to reach the question of the standard of care and whether or not been pointed to the statue we've never been pointed to regulatory provisions we've never even been pointed to a governmental body that established these standards or any authority pursuant to which they were purportedly established the defendant's own discovery responses characterize these tolerance doses that we're talking about as recommendations and guidelines and goals so they do not remotely resemble a know what sorts of law for them the contractor defense let's step back and boil the court created to just show common law acting interest just really in an area where congress had not spoken or did not address the issue because congress had not  d a statute governing contract or liability in cases of products liability claims involving defective helicopters for fifty years or more in this country congress has unstintingly followed the policies of the price anderson at the goals of which are to compensate nuclear incident victims through actions in tort against the contractors congress contemplated and explicitly provided by law for action such as this one there's no dispute as you said that this section covers d o b contractors there are sites around the country and actions ar court no motion involving my mentioning plaintiff wise was made no motion which of granted would have resulted in some little of her claims was made there was no request for a jury instruction the issue was not argued to the jury it didn't show up in  a new motion they're filing to peel the court should not hear it in the first instance here it should be heard on the factual record in the court below thank you eleven of the buckner e r and it says mr gore surely can my understanding is that all she is supposed to be talking about is in that letter report and then he says well you know they just it wasn't in the stuff that was just given to us but again the understanding then and we've made it clear that that was our stance she wouldn't go beyond the letter report one of the fact one of the point i'd like to make quickly on substantial factor factor that instruction if you will you'll read it it talks about combined causes now they never in fact argued that any causes combined in other words they never said well it's radiation plus heredity or radiation plus some other vulnerability factor that's that's at play so they're all to the contrary their whole theory was kind of a differential diagnosis theory where they were trying to rule out everything except radiation in other words they were not talking about radiation plus something else but exactly the opposite and so the if you look at the substantial factors struction of a propose about things in the middle of the second world war prior to the act of the a p a the creation of a regulatory state there was no it's comic energy commission no nuclear regulatory commission it can't be that the things that but the day before those things were created that once those are created they would have printed the fact that the day before when they're done by the army corps of engineers they don't have practive fact i mean that would be a very strange view of the world that that the only source of preemption can be  can be statues or regulations and in fact they say well our discovery responses conceded that the the that the dos limits were not mandatory vining that is of course true but this is really a semantic point that the those limits are not mandatory in binding on anybody in the sense that the dos limits defines the limits that a person could be exposed to safely what is the that is not independently legally binding on on us that's just it does limit the the point is standard operating procedures were created and approved by the army corps of engineers that were that were missions limit that were intended to reduce emissions to keep the emissions below those limits so in other words and we make this very clear in that same answer they really take the section of those limits out of context again with respect to regime and the government contract with and certainly nothing speaks directly to to negate the federal government the federal commonlaw of government contractor defense into the conferees that said there are specific provisions of the of the act the contemplated and those are the really impossible to understand if it was categorically out the window so what we would like the chance to do was a chance to have our day in court to try and prove that the government contractor that we're not certainly here freightliner case that the inclusion of an express preemption provision doesn't take out the entire world of conflict preemption i think i still have time but i will not use up all my time it has been a lot i know i don't your honors i know i appreciate your attention today certainly there's any other questions but otherwise we're very grateful for all the time you've given us and support in case thank you thank you