which we do not have that's best matrix does not have before it faxed indicating a policy or practice or procedure to provide warnings to the earth travelling public what we have here in to the extent that that is now an issue as we apparently have to deal with since rodrigues unplanned sacked what we have here though is a different situation this like took place long after the floods in the d p t group litigation it's like took place in may two thousand troops and at that time we do know that ayad had issued instructions to its members little being one of them that their passenger should receive a warning concerning  certainly there was nothing presented by continental to suggest that they did not know better fact the evidence that we presented by way of our declarations on the beyond the stipulation shows clearly that that information was out of the animal and known to continental in fact continentals medical director is a member of the aerospace advisory committee that itself in eighty six and then again in ninety i know this is rather simplistic but are right rodriguez says out there that's sort of the you know the alligator in the bath tub for you and why isn't our decision and rodriguez dispositive here meaning that if if you under warsaw your honor i did not then nor do i now agree that airlines should be allowed to determine their liability under the war site that is leaving it up to their lines to create the standards practices except for i would agree that standards and practices may inform what a passenger might consider to be unusual or unexpected but that is not the son of command i would suggest a liability nobody or at least  however to the extent that rodriguez left over is it a dangerous precedent counsel i have put that into the air like why is that now becoming a dangerous precedent i truly believe that leaving it up to the airlines to determine when they have information about a danger presented to the years to make the decision on the wrong whether or not they will adopt a practice to inform and then allow that decision to determine whether or not there will be an accident under the worst act is dangerous because the m you know any time you create a duty to warn them but do you have to warn about can just everyone have to take and obviously the individual knows a lot more about their health than an air carrier so does everyone have to take a medical exam before they get you know on a flight to decide if they can fly again i mean you know that's one of the parade of horribles so far you're going and certainly that is up to the passenger the passenger may make the decision based upon the information provided from the carrier which is information that the goes women women taking the pill individuals who have handled reconstructive surgery on their own their limbs should also be warnings then for not clearing your ears due to a change in air pressure now may cause the air drum to burst at some point in time i would suggest no because there is are no studies to show that a significant portion of the traveling public would receive injury from the normal changes in cabin pressure that's obviously what we're dealing  number that you would look at that you would like to be able to quantify what portion of the traveling public would be required to have this condition are potentially contracted in order to require that there be a warning given by the airlines i don't think that there's a that one can give however when we are dealing with hundreds of thousands of individuals making transoceanic trips each year and where studies are showing a ten percent probability of those individuals developing d as a result having conditions i believe that that is a significant enough hazard to at least provide a basis for the airlines to give the warning airlines are now given the warning so if they if they are now given the here are very nearly identical if the court looks at the excerpts of record in this case the pages two sixty five through three fifty three and compares them to the rodriguez excerpts at page four ninety six three six twenty six what the court is going to find is that the exact same materials in the exact same order were tendered to the rodriguez court and tendered are now tendered to this court as a basis contentions about what should be done they were found to be insufficient and not germane to the accident inquiry in rodriguez and the same conclusions ties here i have a question about the just restamp here just should we focus on the think that everything this court needs to affirm is set forth in rodriguez and in rob this case as in rodriguez there is no basis to even get to where the plaintiff can say that an industry standard was violated so liability you know wouldn't we be encouraging air carriers to establish lower standards to avoid liability than i believe that there are problems with focusing  industry standards as the measure of an accident i'm not sure that that is a question that this particularly and all needs to confront in this case in order to affirm but putting that aside for a moment i think that there are issues and concerns because the industry standard discussion really does not take into account a comprehensive federal regulatory scheme with very very detail requirements about what can be said for in flight safety announcements i think this is the discussion that lancet undertakes and i do want to well this is terry if we're talking about from this standpoint if you i mean essentially you're saying that that this particular case but the facts and there are some facts that are a little bit different here is there are you know if we're discussing from it do you see anything different here that makes this case w publication that it's or are you just saying by greatest answers all the questions and that's the end of the story i'm saying first rodriguez answers it and that should be the end of the of the inquiry if the court has a belief that there are some differences that warrant further discussion should be followed but i do want to zero in on to the extent there are any purported differences here in these cases because if you if you boil it right down to the extent that there is a difference in the bait the factual basis  contention i think it comes down to the report of the federal cond report that has been included in the in the cayman record here that was not in the rodriguez record that appears at pages one eighty six through one ninety four of the record at service but i think that report is very very telling because what the court will see is that throughout that report that the contention is that continental acted negligently and all of this discussion that has and put forth in the plaintiff's opening although i think the primary focus of the plaintiffs discussion in their briefing is that continental has acted negligent we certainly don't concede that don't agree with that but the point is this came in played this case contending that an accident had occurred because continental acted negligently that appears page three of the record excerpt if you look at the con report it repeatedly makes reference that there was a new or should have known kind of analysis and therefore there was negligence if anything is clear by this point in the progression of these accident cases it is that negligence is not the measure of an accident and an argument that tries to  frame the accident analysis in terms of knew or should have known or negligence is misconstruing the standard and i think that probably goes makes that clear lance that makes that clear hussein makes that clear going all the way back  even appropriate to go beyond that stipulation but if if we do go beyond that stipulation we come back to the point that hussein is distinguishable because mr paine and stipulated that he made no request for assistance to notify anybody during the flight you're exactly in the tied into your question judging when those courts found no conflict no problem with hussein why because hussein involves things will circumstances and vision the high courts of australia and the house lords in england based their analysis in part on what this court did in rodriguez and what the fifth circuit did in blanche's it and so what we see is an international consensus forming that reference what the courts of sister signatories are saying and how they are interpreted in this particular treaty and when you have an international uniform consensus as reflected in povey as reflected in  d that these claims are not actionable at some point that the scale starts piling up to the point where it can't be overcome you've got povey and or a d d t from the high courts of australia and england respectively we've got rodriguez from the circuit lancet from the circuit court on the other hand if that international case isn't the other way you would tell us not to look at them right well that would be a hypothetical question that is not presented on our circumstances here confirmation one point i also want to stress about you saying the recent contention here that somehow footnote nine of hussein has rejected the international cases i don't think that's an accurate reading of footnote nine i hussein the court mentioned that those were intermediate decisions at that time hussein came out in two thousand and four now these decisions have come out in two thousand and five by a mine is this the courts that have examined this issue have uniformly these claims are not actionable it's not negligence it is not an accident accident is not negligence and the allegations here even if you assume a duty to warn even if you assume that th could not make a request of the airline because mr command was not given the information from the airline upon which to make that request and that's really where the difference boils down to it's not simply a question of whether or not there is a medical emergency on board again in action now becomes the accident as i correct a failure to act upon information in the carrier's position possession is the accident yes that causes in the nation in the in the passenger because the