se i certainly can i will lean over and do my best on that but there's two primary issues that i'd like to discuss with the court today and the first i'll take those in the order of our briefing and the first stoffel is an extraordinary relief that is only granted it's a it shuts down the truth seeking function of the chord and for that reason as such a severe penalty is only used loken yes very all right i will stay in this position so as far as you just go it is only used when two conditions are clearly inconsistent if two positions can be reconciled it does not apply that that is the standard that is the supreme court and discord that if those two positions can be reconciled it does not apply in this case and hording to what what law are you referring to the u s supreme court  at this diversity case this is a diversity case are we looking at federal are we looking at the missouri law where it's u s supreme court so to the extent it stallings verses i forget the last part of that one decision the us supreme court i believe it's the same in the missouri law as well i can provide that cite if you'd like later but i mean this is essentially the the standard i've not seen a case where the us supreme court decision judicial applies to positions that are not clearly inconsistent if the positions can be reconciled there's no reason for judicial stoppel there's no fraud on the court and there's just no reason to apply it and the problem we have in this case is these two position are not inconsistent the two positions that issue here are positions that scheffler has not abandoned both positions would assert today tomorrow five years from now these positions are both correct the first position they're taking are different legal standards the first position was taken in a court of international trade proceeding it was an anti dumping issue and in that case scheffler accurately took the position that it was the successor to refugee bearings l l c and it was a successor because for purposes of anti dumping what matters is the product they've been anti dumping order that domestic producers of ball bearings were entitled to duties paid by foreign producer is forward looking the second position issue here is one the district court here never reached its when the district court never really considered and that is whether shuffler was the successor for all purposes for tort liability  bearings and that is a fundamentally different test it is a fundamental part of corporate law in america that when a company buys another company it does not assume that company's liability unless it expressively chooses to do so  well there's certainly other factors there's other factors you go to beyond that first threshold factor being inconsistent but if the statements are consistent that analysis never begins whether we get to the other just no factors of prejudice detriment things i'm simply focusing just on the again to detriment believed to be a detriment detriment here either but simply put the court here never reached never reach that things first is a threshold issue on that one that would not be a basis for judicial stoffel regardless because the court never relied upon it again in that instance one of the requirements that you just will stop would be that the court actually relied upon and here there's no indication that they're the ruling yours is the case went away without any ruling on that the court never accepted the position but i don't want to leave that because that position is also consistent what happened in that case was  effigy bearings no longer exists that indeed he does not exist and that was a correct statement so again going back to this but but even again even if it weren't that would not be a basis for judicial stoppel but i do want to make it very clear to the court but what that case would not be a basis for judicial stoppel because no court ever relied on that statement and so as one of the predicates for just a thought were to apply that would not apply but again what the general counsel there really was trying to say is this is now part of its ruling but i'll also say the statement there again was meant to simply express that these companies are now apparent subsidiary relationship and it's not a separate entity but it really is just a matter almost a matter of fairness take an inconsistent position in before one chord and then later take another position before another in an effort to obtain a benefit that's correct your honor and and our position here is they're not inconsistent surface reading here and said here they said there are successor and here they said they're not successor those are those are inconsistent if you just left off applies but there's a deeper analysis here that frankly is never done that we counsel on the basis or what i'm saying is that under the antidumping law there's a different test to change circumstance to the former congressman well that's i just don't believe i haven't read the authorities but i believe you are seriously under me the position that the be taken on the representations of the court of international trade the representation your honor to the court of international trade was that scheffler group had taken over the product line was doing the making the trade we're really focused on a single sentences one or two sentences that deal with it most of that petition to the criminal trade was about a totally different issue about i'm not focusing on the one that i'm asking the story to give a record side for the  show causation must establish exposure to a level of the chemical that is shown to be capable of causing their illness the problem we have here in this case is that miss kirk was exposed well the the best evidence they have of this they have an expert who testified that certain immune sensitive mice when exposed to five hundred thousand parts per billion of t c e attract more ethylene exhibit symptoms like autoimmune  hepatitis they also have that same scientists testified that when those same mice were given one hundred thousand parts per billion again there's over the human equivalent of four years of life twenty to twenty four years that's obviously much less than that for mouse they did no way to extrapolate five hundred thousand down to fourteen parts per billion this is what we're very difficult situation that regard it's only speculative mr mclean in his closing argument acknowledged this to the jury when he told the jury when you come to the instruction we're going to go over it where you have to find that she was exposed to sufficient t c e you don't have to find any certain level just in your mind what is sufficient the problem here is that's just simply not what the jury guesses or speculates is not sufficient to stand to satisfy the right people at standard furthermore there is no way well going from that then you ask well how would we go from there if there's no way to satisfy that standard th or the majority of the causes of an illness are unknown a difference or a diagnosis does not apply in that case the illness was exercise induced asthma and the court said difference of diagnosis here simply is not available only analyzes the difference for diagnosis what they've done there is use brackets to take out the fact just talking about a different expert who was never was never called in this case no difference or diagnosis was done by either of the of the expert opinions are we well your honor frankly it's a little of a chicken or the egg situation here and another and yes question absolutely will the experts here should not have been able to testify it was more likely than not specific causation of pain so to that end i at this point i have one minute left so i would like to have a minute for a bottle so if there's another question this time regard to the representation made to the court of international trade it was not qualified and it was not based upon success or a liability and here's the reason the issue that was confronting the  the international court of trade was whether or not f a g barings slash shuffler were capable of receiving payments under the antidumping statute f a g shufflers position was the statute has passed which said that if you did not advocate for this anti dumping that long yes judge because the issue that was being discussed was the constitutional rights of baring to not advocate for this bill and that basic position that they took was you cannot restrict our constitutional rights to advocate or not for this position by this law that position ultimately was accepted constitutional rights as you've written judge loken arp are personal they're not transferable and they had to take the position and this judge case recognized they would not have had standing to assert the constitutional  former us corporations no longer exist we are that entity that is true and more and more we have their constitutional first amendment rights we are not assume the liability they could still make that representation to the c i a to eat right yes except that except that if you are that entity if you are that entity you accept liabilities you do not have the option judge to not be the entity for all purposes and have the energy's rights well i guess i guess you want either either corporate law has changed dramatically what's wrong with that analysis well remember just what you held in stallings stallings songs hold that judicial stoppel is not merely a legal test there's a subjective element to it the question is does the court believe whether or not the parties are taking inconsistent positions before it to its benefit here's what stalling says the district court is in a better position to determine if traditional stoppel applies because determining whether a litigant is playing fast and loose with the court has a subjective element and its resolution draws upon the triers intimate knowledge of the case at bar and his or her first hand observation of the lawyers and their litigation strategies now that's the basis upon which judge k s made this determination not as a simple legal matter of corporate law but whether or not the lawyers in front of him were were playing fast and loose on this issue and he believed they were and so what you say in your holdings is that we apply an abuse of discretion standard to this determination because only the court can determine whether they're playing fast and loose they didn't raise that issue in the in their briefing before you as you know and the in in this in the new hampshire case which we all agreed were controlling for both purposes before judge k and this case the standard is  that it's unfair to allow the party changed positions not whether we suffered prejudice and in this case because they had asserted that and because in fact throughout this case it was scheffler who was in control of this litigation judge said yes but the new hampshire case is the controlling authority judge that we all pointed to and recognized in that case i think stan i think it is yes you are yes the new hampshire did change the law in that regard and i think that that may be clarifies that issue the issue is one left in the discretion by you of the of the of the district court are these pollute people playing fast and loose with me or not legal it's a legal question know that's right in that would be true except that the the judicial stop will issue is not a pure legal issue as you've defined it you said it's designed so that the court has the ability to stop parties from engaging in gamesmanship before it and only the court sitting there making that judgment can decide whether or not that should apply and judge case decided  only at the time that he made this decision but throughout trial when the scheffler director of compliance was the f a g corporate representative when she follow up on that point potentially strong point what if what  in this court and i think that judge case believe that they were not only from the court of international trade decision but also the district of connecticut decision which although was not the primary basis was considered by him making the determination that the parties were playing fast and loose before him if you could take about a minute and talk about that connecticut yes in the connecticut case the way that they they made a same corporation their their corporate director of regulatory affairs testified as f a g their their their annual report issued into evidence made that clear as well and when she was cross examined on the stand she said it so judge case when examining the rule fifty motions following trial said i'm not going to change my ruling you did not raise this issue in your initial briefing i'm considering that i'm considering what happened at trial and i don't believe it's fair for you to change your position this way and installers you've given him that authority so with that in mind let's turn to the issue of the proof of exposure in this case judge loken you asked a question did they raise the specific causation issue in their briefing no they did not they took the position throughout the case along thank you ok so so the the issue never was framed at trial in terms of specific causation they weren't worried about that they were all in throughout the entire case on general causation they waived that argument now and concede that there was adequate evidence of general causation in this case instead they attack specific causation for tactical reasons but at trial the expert conceded judge that she was exposed to eleven parts per billion which was double the permissible exposure standard throughout her entire life because they were all in on this general causation defense therefore there was more than enough evidence more than in any other case that they can cite of continual excessive exposure for her now added to that and what what led judge kay's to his conclusions in terms of denying their motion j o b and motion for a new trial was the fact that we we submitted the leading experts in the world judge school who's the leading expert in regard to t c e and auto immune hepatitis who's performed over fifteen different animal studies and is recognized for her work and been put on the e p a s scientific advisory panel of which only ten scientists of the united states are members of and they pointed out that the research has demonstrated that when  when the exposure is in vitro that in fact there is a non dose specific immune mediated response that is caused in response in the humans and as tough as doctors is it testified what happens is that the t c e converts liver into non liver tissue as far as the body's defenses are concerned tang study that cited a very minimal level is necessary and the witnesses all testified she had an excessive level her level was twice by their admission three times by our admission of the  at double the permissible exposure limit so we know that there are health effects associated with these exposures and they testified that that in fact in her case because it was in vitro much less than this would have been required to trigger it and that's the basis and they pointed to animal studies which showed in fact that effect and had a sufficient basis i think that your right opinion judge is correct on this point and is cited all over for the proposition that we don't require mathematical tables between cause and effect to be able to say as you said we what must be had is a the basis upon which a reasonable person could conclude that the exposures caused the disease and so we have we have a prime example here judge case who listened to the evidence and has no is no up pushover on these causation issues and put us through the test at all stages of this litigation when reviewing their motion for a new trial says it's not these debate or points that you want to put forward that that caused plaintiff to win it was the mountain of evidence that they presented which was more persuasive than your evidence according to the judge he wasn't simply basing on the sufficiency of evidence and that they've met their burden because there was sufficient evidence here he said it was more persuasive than his order and so  task judge and right then your question will that persuade a reasonable person that certainly persuaded judge case the evidence was overwhelming it wasn't it wasn't a passing passing discussion there was that there was a place by the inherited characteristics judges are important and they were an important part of the the the discussion it is much more likely that a person who is predisposed to two auto immune diseases gets  predisposed and so this is like the eggshell plaintiff issue judge that that you're so familiar with because she was in a person that was predisposed to auto immune diseases placing her in a t c u is in a deposition one of our experts was asked can you guarantee that she wouldn't have had auto immune hepatitis even if she hadn't been disposed or had been exposed to t c e and she said well that's impossible to say it would be the terms less and less than what we have five hundred thousand parts per billion which is the only number that we've actually seen causing h like symptoms that's we're asking a jury to extract lay down that there's no basis simply setting a preventive measure for a very large range of all different kinds of illnesses think he would go above this you can't say you're completely safe the studies themselves even say this is not causation it's not it's not clear what the standards are s