good morning again your hono i would like to be certain that we're focused on the right conduct in this particular case this is a matter that was appealed from a summary judgment order heard by judge tom little of macon county based completely and totally on a document and in the order that  judgment review cases is that this court should look to see and must give heavy weight to all well but pleadings there is no allegation that pleadings in this case were deficient in any way had this matter been tried first in front of judge little there is no doubt in my mind that it would not have been determined on a summary judgment if you look at the ten page report of the arbitrator it's ten pages of conflicts in testimony between expert witnesses are the plaintiff that the arbitrator made a specific finding that the plaintiff was not credible these are things that would never have been introduced into the case before mr durban had a right to a jury trial on the strict liability claims which he was making against the manufacturers of these products he was than i that jury trial as a result of the order by judge little will never have the opportunity to do that again and i would suggest to the court that none of the cases side of it and in the briefs are directly on point to the situation and i suggest that the reason that is is that it would be streamlined rare for a trial judge to base a decision on s judgment on an unrelated matter that was held by the parties in this case and worker's compensation matter so i think the focus this morning used to be on what judge rules responsibilities were under our system of jurisprudence is not based upon convenience or economy or efficiency it's to be based right as a result of this particular matter and i don't believe that any of the findings of the arbitrary are would be controlling much less admissible before the circuit court being claimed to a causes breast or problems as well that would cause some speculation on my part as blood because who knows what could have happened when that case may have been tried there may be additional information that is obtained now i'm sorry if i'm not aware of what he's filming but what is plaintiff's claim in the products liability case in terms of the alleged apples in terms of the claims then when it comes to the issue of collateral stoppable there are several elements that have to be satisfied or defendant be able to  obviously made very strong opinions known in his decision however that's not say that someone else might have other opinions of the experts that were submitted to in that case the discount of the expert what expert testimony that was presented by the trishna by the plain multiple opportunities for recovery there are multiple types of cases filing worker's comp where those a third party case filed as well and we don't have a against multiple parties in different venues and we have concepts like set offs and so size and things of that sort so that the person making the claim is not unjustly and retched as results of multiple claims in this particular case we have suggested in our briefing that there were issues that  should have been considered by joe little as being not identical to the issues in the conclusions of the arbitrator but i would suggest that it's the arbitrator's strong opinions arbitrator and based upon those observations those factual determination that he clearly sets forth within his order as the basis for the child wishing anything for low so i don't believe that that's appropriate i think that the same wishes this matter and the single issues the two cases because you should not be using the determination of one prior of fact in a case where there's a different trier of fact that is provided for under the law there are a number of scenarios involving different binders of pack based on  you knowledge that i do the dembski case that is sided i think in both briefs talks about a similar situation where there was a question as to whether a person was injured in the line of duty and that was the question that the the pension board address and made a finding that was different than the other claim that was foundering and they attempted to use that but i do believe that this court is faced with a unique situation in this case where it's clear that the the circuit judge relied very heavily and it was suggested to the judge that the reason the judge should adopt the findings in essence adopt the findings of the is because the arbitrator you know reached findings in his deliberation and foreclose the plaintiff from pursuing a third party action against other doctrine against must be the same as in the prior litigation you've got to have the similarity or identity it issues and you have to have a final judgment we look at the brief that was filed in this case counsel has admitted that we have identity of party and we have a final judgment and the remarks that were made earlier in counsel's opening remarks on behalf of the plaintiff acknowledge that the issues are the same this is a classic case of allocation of collateral in central to each of those regardless of whether we call it product side ability action a negligent action or a worker's compensation case is the notion of causation and in the civil cases you know causation causation aspect and asked the simple question was mr durbin's respiratory illness caused by his exposure to butter flavorings containing the diaster tile while working at a d m and the answer to that was no counsel has made a number of remarks in his brief about different aspects of both products liability case different aspects of a comp case in other words while there is t v vienna work comp cases hernot c in a calm day says all those types of issues those are different than the products liability if you yeah they are but the core element that transpires between the two is the need to establish causation and we did cite a case in armory the owen case which is the exact opposite of what we have here with the civil case had actually gone to judgment first and it was applied in a collateral estoppel set against a worker's compensation case and that's interesting because the standards are slightly  in the worker's compensation content of the standard is could could be a vent it might or could be a factor that's a very very liberal standard and even under that standard this commission determined in a lengthy condition he was alleging a respiratory condition in the worker's compensation case and they discussed it in two different contexts first was relation and relation to c o p d which they determined the commission determined was caused by smoking a workers were that the that the commission discussed whether it was caused by the alleged exposure to this chemical gas city and so the the commission looked at those two aspects and said neither of those conditions  are cost based on the evidence before it are caused by this exposure and i think you could even read read that decision to say that the commission found it highly unlikely that is over was even a sufficient exposure making some assumptions most favorable to the point in that case when you read through the commission's decision it seems to go even if we would consider we still find in they do that in a number of different situations so i think the commission case was looking at the discuss his condition his respiratory condition in the context of c o p d that's clear and they found they they found it according to the commission no generally accepted science relating c o p d to the diaster time exposure they found also according to the evidence in the comp case they concluded that that the exams that were studies that were performed the studies that were done the imaging studies all had an index supported the criteria for relating that smoking so that was one of the aspects the other aspect that they dealt with was the the video of the popcorn workers long and they talked a great length about whether or not that was present about whether that could be related so those are the two respiratory problems of a highly they also talked about is generally the commentary function tests and they they talk about the context of them what did those mean did they show a cheery ration do they show a decrease and the commission concluded in the don't think there was any they did the commission from the way i read the decision and portions of the materials in there from the public court was looking at the respiratory condition as a whole essentially trying to figure out well what is the condition and they went through multiple conditions and said that they're just not related to either one so what can you say about what is why in the product liability case as in when the product liability case again we're looking at we're looking the complaint and we're going on the basis of the allegations but when i look at paragraph fourteen which is it c three thirty nine of the record i direction proximate result of foregoing negligent acts and emissions  michael durbin was exposed to defender it's natural an artificial butter flavor is and has suffered severe permanent progressive damage to his lungs respiratory system and other respiratory illnesses and then it goes on to talk about some of the some of this as more specific  implications of that so they look to be identical based on the allegations of the complaint and when we look at the commission's decision after the summary judgment proceeding or in the ratings  did not gather that from that and i look back through the response it was filed it was always argued in the in the generic i mean that the most i think significant thing that they they kind of allude to is that they've attained a new doctor and they identif look at the three elements of collateral sample and applied those the courts have also said well we're not going oh we're not going to apply even if we have all those met where there's not a full and fair opportunity to be to be heard in the park case and they believed that argument in their brief they didn't really talk as much about it the oral argument today but it really it really relates back to the doctor's identity and the response to the motion for summary judgment and i think we first of all i don't think there's any law that justifies in this case alonso would have second by him try a case you're not entitled to a perfect trial you're entitled to a fair trial you have to have the appropriate incentive in the first case in order to be able to try the case for example if there's a liability issue in the end the first case in the dollars are only fifty dollars if you maybe somebody is going to be as aggressive in pursuing that case on an issue as they would if we're talking about fifteen million dollars and so would it be fair in that scenario even though you have the elements of collateral s l present to apply that maybe not but we don't have that here we don't have that situation we have a very strong incentive in the workers compensation case to to present that case and they did and if you remember when you read the transcript of the be a valued expert on this on this type of exposure on this type of the conditions and they presented that they aggressively pursued the litigation and so i think that demonstrates that they fully intended to to you know pursue and and in that case and they did fourteen page decision by the commission i cited a number of authorities and the because a very well rational reasoned decision and it shows that this wasn't just something where they brought the petition or any testified about a couple things and every employer denied it and in the case of close it's not what happened this was a very heated discussion between the various experts and again i think that goes to the stablish that they have the opportunity they took the opportunity had the incentive the other aspect of that i want to point out is that even if you were somehow inclined to say well maybe maybe medical literature has changed in that time they haven't offered status of your pleadings you've got to present evidence that shows that there's a material dispute or you've got to have a legal argument that opposes the other argument and it's is that we don't have that here at best if you look at their response to the summary judgment they sa that medical technologies change that there is a change the doctor's opinion ok and i tell them what they are and they never do that and that's important because we're looking at a summary judgment where their obligation is to meet that with facts showing they didn't do that so even if you assume that there's a way that you could go back and look at this and say well things have changed we're going to reopen they haven't presented any basis for you to do that and that's my point that's why i hope i didn't run too much but that's my point of trying to make again we think that this comes back to the to the concept causation is central to both cases they had an opportunity it was opportunity that they pursued aggressively they had an incentive and the commission sa case i don't want to get into a discussion of the facts of the of the work compensation decision but i would encourage the court to to study that closely and that's the reasons that were offered and the full analysis that was done and i know just cherish was on the panel of that compensation case we could have been faced with the same situation here but ours was just the opposite so while there's not a case that we cited this one hundred percent squarely i think owens is the one that we point to the say there's a framework summary judgments are not given out as frequently on my research as in the federal court oh no i believe in the fight in the right of a person to be adjudicated in court before a jury of his or her peers this was denied this man based upon a book for i think believe it's a fourteen page discussion of the conflicts that exist in the evidence of the case related to causation related to treatment related to any number of issues but this man his family and they should be entitled to a fair and for all hearing not just a fair hearing but a fall hearing before a jury of  and they've been denied that based upon direct findings made by an arbitrator that were clearly and completely reliant upon by the defendant and adopted by the trial