good morning and may it please the court matthew bergman appearing on behalf of the stevens family with me at counsel tables is ms ruby element i would like to reserve five minutes for rebuttal under oregon law in a toxic tort case a pla ff is entitle to rely upon circumstantial evidence in establishing the fundamental issues of cause ation an exposure organ supreme court has recognized that in reaching this determination expert testimony is almost always required and that in the words of the organ of the idaho supreme court judges should afford substantial deference to a qualified expert selection of the facts on which he bases his opinion in a void nd guessing the facts on which the expert chose to rely in this case it is very clear that the district court relied solely on the direct evidence and set forth in mr stevens testimony and did not consider the circumstantial evidence consisting of union pacific score pretty admissions and documents and the expert testimony submitted in this case we would agree that standing alone mr stevens testimony that he observed insulation being removed in his father's proximity from locomotives would not be sufficient to establish a fact issue on exposure or causation but read in conjunction with and connecting the dots to the other evidence in this case we believe that that that inference is appropriately reached particularly union pacific admitted that the locomotives that were repaired at the weezer facility were insulated with asbestos union pacific admitted that the insulation would be repaired and replaced in the course of regular and anticipated maintenance in finally that this activity would create dust so viewed in the context of mr stevens testimony that he observed installation work going on that establishes a fact issue that asbestos products were actually being used now combine that with the expert testimony of dr longo that in the two stall garage or syllabi that they work was going on  the round house anybody in the work area would have been exposed within two hundred and seventy six feet dr longo established through his expert testimony which was not rejected by the district court which is before the court that  this that whether or not mr rowley stevens actually worked with the material being present in the work environment would have contaminated his clothes and furthermore the that the home environment would have been contaminated dr longer referred to this is chronic and i ask you about that because it both both dr long going on and your other expert dr church yes predicated their analysis on an assumption about the consist of mr stevens testimony that insulation work was performed that his father came home daily with dusty work clothes and you combine that with union pacific admission that the products can that they you know and that and this was a key document routine maintenance of that of that locomotive involved disturbance of insulation and finally dr longo's testimony that the entire work area that would have been contaminated and so in terms of you work with us bustos containing dos was a daily occurrence yes and i don't believe the record would support a daily occurrence your honor to be candid with you but i believe it can be reasonably inferred that a regular that regular work with this best this was in compassed within the maintenance work performed in the ways or facility and moreover based upon dr longo's testimony whether or not the work was actually performed on daily basis and i don't think the record supports that the  environment was contaminated and just through the process of re and trainmen which dr doggo described asbestos being we laughed it into the atmosphere it would have resulted in contamination it is a question most assuredly of connecting the dots but we believe the dots are there particularly in light of the difference that i don't hope courts require i be paid to the experts essentially selection of facts can you can you tell me what specifically in the record you're referring to  at the at the demonstratives that mr stevens testified were representative of what he saw one can just look at those huge locomotives that that's in the actual briefs you know in case and  as you're talking about the photographs i am your honor yes which were concededly not taken of weezer but which the evidence supported the conclusion that they were representative of what what he saw this is i think an example where in there  familiar with and in in a century what we have i believe is a similar situation as was presented to the washington supreme court and lockwood albert lockwood had no you know we worked in the hold of the s s u s s george washington establish that key factor other evidence and you know other evidence and that's exactly what we have here there is no question that mr stevens does not have personal knowledge direct knowledge but the evidence here your honour's is if you look at the court's opinion  it does not appear that the court granted any attention or any way whatsoever to the union pacific documents both the corporate admission testimony and their repair specification that said you've got to replace and so lation is a part of the process completely ignored that as well as completely ignore the expert testimony which under i don't whole lot needs to be given substantial difference to at the risk of taking you away from the argument that you're making i like course of oral argument but i would like to see where you find a statement from the bench that it was in fact a question of fact i will i will come back to you on my controlling i'm sorry judge other record before her weight was a very very limited record that did not contain the factual evidence that was put forward before the district court here regarding forsee ability in particular and remember that  pacific is acknowledged that a duty is owed the the scope of the duty essentially the scope of the duty is determined by forsee ability what was not in the record in hawaii was the extensive analysis over the course of  hundred years of medical and industrial hygiene literature regarding the knowledge and let me just be very very brief you know you had two strains of knowledge none of this which was in the record in a way starting with polman in  on union pacific was a member of the american association of railroads its personal physician or its company physician attended meetings discussing asbestos hazards moving forward you have the alternate railroad which was a subsidiary of union pacific would as to when it became known or no knowable and let me just you know interject that under idaho law you know that the negligence principle that only the general risk of harm need to be foreseen not the specific  injury so with that preface in mind within within with the in industry the key date is nine hundred and forty two when the pennsylvania department of labor reported on general electric's utilization of sixty the wagner study but the one thousand nine hundred and forty nine study the hooper study by the national cancer institute specifically referenced referenced cancer lung cancer in general and again under idaho law it is the question is the general field of danger and it was very you know the evidence that was put forward and there was no evidence in the other side but there is evidence that was put forward in this case was that through its involvement in the american association of railroads  union pacific was you know had every opportunity to be aware that asbestos was being used prominently in its repair facilities and knew about the basic industrial hygiene measures to protect workers from that and  that that that is that is stablished in the record moreover you have this extensive body of literature going on you know starting in one thousand and thirteen and going through the forty's and fifty's recognizing that not only are workers exposed to toxic dust risk but their families are exposed and that the way you protect them is to have separate lockers and separate change rooms so you segregate work clothes and street clothes there's no evidence this was done here well if you're taking the position that the with us on the causation issue and affirm an alternative ground so i am essentially suggesting that the court declined to do so that the evidence before this record wouldn't allow a reasonable trier of fact to conclude that it was foreseeable  again foreseeability under idaho law is always a question of fact in less reasonable minds can only reach one thing i believe the record we put forward before this court before the district court would allow reasonable minds to conclude that the general field  danger of take home asbestos exposure was no a ball to union pacific in the forty's and fifty's thank you weaver reserve the rest of my time for good ok let's hear from morning steve crane for union pacific railroad company i'd like to focus my comments on the actual evidence on the two key issues that we think are dispositive of this appeal one is exposure into substantial factor let me start with exposure which itself has two parts one the father's exposure and two then exposure to the plaintiff from the father's exposure so what is the actual evidence on the father's exposure there is no evidence that the father worked or cut insulation himself there is no evidence that the father worked around anyone else who cut insulation or what his proximity was to any work on insulation by others could just pause there the st part of that there's no evidence that he worked around others who were cutting insulation correct i thought the plaintiff's testimony here was that he went to his father's workplace and he saw i guess he was watching his father's well that he saw people doing that now no that's not the testimony and i'll get to that in just a nd because i want to pick up through a logical progression of this but i don't think that's the actual testimony there's no evidence of what the operation was conducted as to installation how it was conducted how often it was conducted there simply an absence of information in the record on that the totality of the evidence in this gets to your unders the totality of the evidence with respect to operations regarding insulation was that the plaintiff's recalls when he was somewhere between six and eight years old once seeing insulation being removed and replaced that's it because of that again why doesn't that testimony alone counter the st part of that statement i pause you on because there's no evidence of what that removal or replacement entailed and where the plaintiff's father was in relation to that what we do know from affirmative testimony from union pacific six person most knowledgeable deponent was that the only time as best as might and i emphasize might be disturbed is in a major overhaul situation and even in that circumstance it depends on how the worker did the work on whether the lagging which may have contained a specified as was disturbed to the point the as best as fibers were released but that's all speculation we don't know for example when the plaintiff's observed work on insulation the one time he was there whether that was a major overhaul and that's the problem with councils  argument the smarting that there was this repair work constantly going on and that that somehow creates is bestest us that's not the testimony the actual testimony is only a major overhaul might depending on the circumstances result in as best as being just a disturbed but there's no evidence that it was a major overhaul at that time so the totality of the evidence as to the father's exposure is simply an absence of evidence and speculation that the father himself took home as best as on his clothing without that premise the plaintiff's argument and contention that he was then exposed while his mother did laundry has no foundation but let's assume some exposure to the father which is speculation there's no evidence of how often the plaintiff was on the porch where the laundry was done and there's no evidence of his proximity to where the laundry was being done and even speculating that the one time the plaintiff observed the operation on the insulation and even assuming the father was in sufficient proximity and even assuming the insulation was cut and disturbed there's no evidence that that event on that day was the same day that the plaintiff's was at home on the porch while his mother was doing the laundry yes but i think the the inference the plaintiff is saying a jury could draw here is that  the insulation removal and replacement work that he observed on that one occasion was a regular part of what went on at that facility and that his dad worked there for one what was it ten years or something and that's just not true that's not what the record says but what does the record say on that the record says that only in a major overhaul situation and i think the the citation to that is  seventeen the only evidence is that it is in a major overhaul situation that as best as might be disturbed and it depends on how the operation was conducted by those who were operating at that time that's the evidence the evidence is not as plaintiff suggests that there was constant repair work going all the time that in fact disturbed the a specialist there's no evidence to that so remind me exposure this sort of secondary exposure that the plane of suffered would have been enough to constitute a substantial factor but i can't remember what was the factual premise that well there was no there was an assumption that was the assumption the assumption was that he was constantly exposed and that's the problem and that's the the baton was never passed to the expert the experts as all your honour's know it their opinions are only as good as the factual basis for the opinions right and there was no factual basis for the experts opinions that assuming he was constantly exposed to just help me with that juror expert was asked to assume or did assume that the father was exposed on a daily basis to regularly i think yeah i think that was is or some word like that was his assumption and of course the other problem with the expert testimony was dr chirk said well he would need and i'm about to get into this nd topic which is the substantial factor issue that he would need industrial hygiene testimony to talk about intensity proximity duration things like that in order to come to his conclusions and he didn't have any and he wasn't given any so that's my segue into a substantial factor even speculating that there was exposure to the father and even speculating that the plaintiff then picked up that exposure on the porch while his mother did the laundry think that was the expert they had an expert who said that it wasn't just going to be exposure on the porch because the father i think think kept on the shirt and so the whole house basically would have picked him up no i think he was and he said that his testimony was that assuming the father traipse through the house and disturb the assumed fibers on the clothing that might be the case but the actual testimony is that the father went to the porch and deposited his clothes on the porsche coveralls but he had the shirt he would he would have been wearing and kept on in the house there's no testimony that somehow the fibers these mythical fibers honor is that all of this is back you'll ation and inferences can only be drawn if there are reasonable inferences and if the inference is more likely than not and we don't have enough evidence in the record to draw an inference more likely than not for example of what you're just suggesting but getting back to a substantial factor even if you assume all of that exposure exposure is not enough there has to be evidence of as and without speculation that the exposure was a substantial factor meaning exposure amount and duration intensity proximity things like that and there's zero evidence in the record as to duration proximity and intensity of the exposure to the father well let alone what you're calling speculation is often what we would call a fact because we don't know and we don't know what conclusions a jury would reach if the version that i thought we had from the record was that the father came home covered in dust took off the overalls they were washed on the porch but walked through the house with his shirt on covered with dus would that be sufficient not sufficient to show duration and proximity but sufficient to at least get to the jury with the question of whether i was talking about an inference because the record is extremely limited and actually doesn't support the hypothetical that you propose there is no actual testimony that the husband  or the father rather whatever the dust was and we don't know that it was his best this does that's the st problem and the st speculative inference you have to get over but whatever the dust was that he traipsed through the house there's no evidence of that the only evidence is from the plaintiff's that the father deposited the clothing on the porch and he may or may not have been there more than once we don't know he didn't say he didn't remember so yes there is absolutely a distinction in the law between circumstantial evidence and enough to get to a jury but in this record we are on the other side of the line where inferences cannot be drawn more likely than not based on the evidence in the record and the exposure itself as i started to say even if you assume that happened and it was actually as best as exposure zero evidence in the record on the son's proximity intensity duration and cetera which would allow the trier of fact yawn speculation to find a substantial factor and particularly emphasizing the mcindoe standard which although it was under maritime law is a political here because negligence standards applied and the mcindoe court i'm clearly articulated the substantial factor approach than it is on this record and even in that context the mcindoe court said it's not enough because of the absence of information on proximity duration intensity i know i'm running out of time but quickly your honor did raise the issue of forsee ability and we think under the henry case  court can affirm on that basis alone and i would simply point the court to the henry case where it says whether a party owed a general duty of care with respect to a particular injury will depend on whether or not that injury was a forseeable result of the party's action and in this case we're talking about the injury of and as your honour's have noted and as the plaintiffs have conceded repellents have conceded there is no evidence that before nine hundred and sixty there were any studies connecting take home exposure so under the henry standard we think as a matter of law there can't be a finding of for civility let your honor seventy questions no thank you very much let's put as i understood it and the white case none of the industrial hygiene literature that i talked to the court was before a judge the only in hawaii on there been some fast and loose statements with the record it wasn't one time it was multiple times that he was there the evidence supports the statement that in i mean mr stevens testimony is pretty succinct i would commend it to the court simply stating that that his father's shirt was dusty and he that a specialist was in the installation so if that activity was a regular occurrence that your client's father's workplace it seems to me you've got obviously something to work with but i think your point is right that if you can't regularity but i believe it supports an inference in conjunction with union pacifics corporate representative statement that insulation removal was part of regular maintenance to to support the  let's just be clear there was no deal bear hearing there was no effort to exclude the experts there was no evidence there was no indication that the district court look to the expert testimony which under i don't hold law should have been   evidence or the experts were looked to by the district court in rendering judgment here thank you thank you very much counsel has just argued is submit