think you only need to look at the actual order in this case which is the end of the plaintiff brief the education of the one through nineteen and look at the the political case law related to summary judgment  district's opinion and weigh mire which discussed frequency regularity in proximity test and if you look at way fire you look at her and you look at the trial court did in this particular instance i think the only solution you can reach is that the traveler used the own facts and that was language that was cited with approval in the back page and every day since dr has looked at every single case on its own facts and that includes all the case law that both sides of provided to you today whether it's the johnson case of the third district the zimmer case of the first district whatever page you look at that's been analyzed under the fact test as one that just looked at each case on its own facts and that's not what occurred in this instance in fact if you look at page with the length of the exposures were where the exposures were and the table work that this person did in bowls versus what happened in fact are essentially used factor as a baseline and you can actually read some of the things that the travel court said after it conducted its analysis going on  there rises to the level of frequency regularity in proximity based on that case alone and if you look at the evidence in this case and i'm going to get to it in a moment there was sufficient evidence that had been provided that all inferences being made in discussion about the various witnesses and evidence in the case but none of those are issues which are summary judgment issues the question here at this point is not a good ability of the witnesses not whether or not those witnesses are going to be subject to cross examination that may cause a jury to question their credibility or what have you all those are issues for the jurors to determine that summary judgment the question is simply is there enough evidence or frequent frequency like myself that never served on a navy destroyer it's a ship about four hundred feet from bow stern it has various attacks that are all connected it's very small compartments and spaces and even the military that part in the veterans affairs as we indicated th judgment that's never been required it never has been very forthright but the trial court was preoccupied by that and if you analyze the court's order you can see that the approach that was taken was one that did not fall in line with what the political case life is on s of him and i think is asking a lot of appropriate questions in order to try to understand what the law was out of sight in these cases i think the problem that we run into in this case those that regardless of whether or not mr beauclerk hands on the products the court and the is evidence of frequency regularity and proximity one of the things that struck me last night as i was looking at the the briefs and everything for the last time before i went to bed and drove here this morning was the fact that this case is highly unique in the sense that if you look at the facts of this case all the parties generally agree it's the same testimony that you need to look at him to look at we have to different characterizations of it but it's generally all the same testimony same with the case law also i think the person's wants and that's why they created the test the standard is simply the point i'm a show that the exposed person regularly worked in proximity to dust created by the product if we look at mr bowles regularity of employment he was on the ship essentially one point five years and in comparison to cases that's just backorder way meyer virtually most cases that are navy cases people go to work for eight hours maybe they work overtime for ten or what have you and the home they may work twenty eight years at a particular site such as that with go home come back to work they have weekends off or what have you mr bowles exposure was different the one point five years that he spent on the u s s floyd parks he ate there he slept the face of that particular ship mr mccaffrey his testimony was appended and the citation i'm going to give you is that seven six six six one of the record is the defense expert unable expert of john crane and one of the things that he said repeatedly a deposition was that it was impossible for mr bowles to have not done throughout the ship in living his daily life and one of the things he described was that even just to get a pack of smokes and  would have had to go through the various compartments of the ship to get up to the ship store he would have to go through the various compartments of the ship to get up to the radio area where he performed his duties he slap a load at the mess hall was full of that if they were loading ammunition he would have to go below down into the actual engineering spaces the boiler room inside in order to have a cigarette so that he didn't put the ship at risk with a spark from his his cigarette away that was part of the routine of the very ship and that's what he did for one point five years part he's also required him to go into liver messages as a radioman to the captain the ship wherever the captain may be and that is regular employment one point five years in a ship that's a small confined space where the evidence is there was insulation  product the insulation was everywhere on the ship and as i said before it was on every take a bite thing and that was mr revelle his testimony was provided he was on the ship you actually left in fifty eight you overlapped mr boies solution there also there's also evidence that some of the cold water lines that went into the some of the sewer lines and the bathrooms and such also would have contained this past us but there was lines at once wrote the navy ship to contain this fast and that was true not just you know mess hall and everything else but in all the connecting areas to the various parts of the ship the place ran through of and they were exposed it's not like a building such as this where there's places on the wall and it's covered i mean they were just running and you could see them visibly and they were and as i mentioned before he overlapped for one year basically his last year was mr bowles first year on the show and he indicated that that insulation was through the ship and that was his testimony as of the time he left in fifty eight it was already there already in place kalo product a while o is one of them that's twice a year zero seven one to seven three of the record mr roboto recalled seeing the cable name and in addition to that another ship made mr rogers indicated he actually saw boxes of bones illinois cable material in the engineering space something that they would keep in order to do repairs and replacements as needed if they were at sea or what have you actually saw that on board the ship as well so we have mr rebels saying it was throw the ship when he left absolutely and there was a lot of evidence that was provided with respect to that after mr revelle laughed in one nine hundred fifty eight again having said that there was already owns illinois hayle insulation in place on the ship mr mccaffrey testified that based on the ship's records from november fifty nine until february one nine hundred sixty after that fact it was a try to repair at long beach station of the u s s floyd the parts where a hundred seven man days were spent removing and replacing salutes really well what i'm saying is i think the judge was well aware of what the various case lives said right he did actually point that out right papers but if you actually look at  specific for this particular thesis is it isn't but what it what i'm telling you and what i've been arguing to you already today is that if you actually look at the facts it's one thing to say i've looked at these things and this is my conclusion but if you actually look at the facts i mean that's one of the things i was taught but was regularity of use i'm sure for one point five years he was always on the ship he never left a frequency of use the insulation was everywhere in place on the ship including the ones illinois kaleb if we go to john crane casket some packing mr rogers testified that they routinely several times a week that said seven six fifteen and fifty one thirty eight the record would prepare and replace steam line gaskets and valves down packing on the various piping and pump systems on board the ship it was something that they did routinely in his own words frequency of that is that it occurred frequently hit routinely and i've heard weekly as to the gaskets and in terms of the frequency of the use of insulation it's not necessarily in this case like what we would find in a power plant or something where you have evidence of somebody saying well yes i frequently change the insulation on pipes or what have you  different that occurred on board ship but the major exposure according to the defendant's very own witnesses is that the way that a specialist would get into the air and expose naval servicemen ships such as this is that when they were at sea and the ship  seas or more lightly every time when they're at sea and would have firing exercise the whole ship would basically vibrate and you would have dust oh and it's a phenomenon that these naval experts all talk about which is it would shake the pipes it would shake the entire ship and you have just come off yes but yes best as insulation and it would become part of the best of the entire ship which it goes back to exactly what the factory work talk to both of which is the evidence in that case in fact or the supreme court found was sufficient they found it was a fisher because they found the product was at the site hickory to dust it contributed to the environment of the particular plant were last factory workers and anybody that was in that area would have been exposed to it and that was a reasonable but other evidence was provided that caleb was used to that location that it created dust that it was in a specialist containing product and because he worked there for a number year number of years that was sufficient in the spain papers to support the denial of a motion was was put into the here he lived there there slept there in addition to doing his work there is evidence in this case with the look at wayne meyer the johnson opinion which i discussed in our papers the spank case which i already mentioned even the crusoe decision which so justice connect wrote two thousand and three i think it was that there is evidence that the products were at these that and present on board the ship that those products created best if we're talking about insulation is from the it's from repair work if we're talking about the gaskets it's from the repair and replacement work that mr rogers talked about and that that necessarily contributed to the air the plant and as already indicated the evidence in the case was that there was no way that mr walls could not be in farm argued that that shouldn't apply at the summary judgment stage and johnson the third circuit house that yes indeed becker does provide a substantive test on just that summary judgment to determine whether or not they should go to the jury bowles regularly was in proximity to its use frequent use in this context is the first prong of that test and use means something that would cause dust to be released from their product use is not halo was in a box in the board use is not there was insulation height that may or may not have been a low that was covered in  that dust from that product could have gotten to a place where mr bowles regularly questions but his counsel are you sure it was the purpose and not one of the many ships that you served on after the party said he said no i can't be sure of that what he was asked if you could swear that this halo ha room only in the box with regard to proximity because mr bowles there's no evidence that he was ever in the vicinity of an old school point kalo insulation which is what when myron bakker suggested or do and it's what the trial court did here and with respect to my client john training i think the evidence demonstrates not being used the way in which it's being used and so i'd like to address very specifically what the evidence in the record is in this case and be mindful that with respect to my client not only is there only one ship but there is only one witness fourteen others with holes with there's only one witness whose testimony is that issue that's in the structures first we can talk about a couple of concessions so we're not talking about any insulation products we're talking about  mr rogers testified that no gasket were hacking work was done on the parks outside the after fire that's at page seventy six eighteen two decks away from the radio it is separated by numbers of ladders and two or three  i mean the only test when we have is the testimony of mr rogers and that he places it only in the after fire not only that i mean that that's not all he also sense her consuls argument there wasn't a whole lot of argument about john crane yes it's impacting think that's why with respect to my client's product is limited in certain place roger said it didn't create dust and and so i do think that if the court looks at my client's product work place where it was used as characteristic features as testified to by the only witness whose testimony counts the five redress the five hundred theory does not  tests of the very patient products of john actually using john cream products and we found was that it was fiber release you don't necessarily see of the dust but it gets in the air contaminate the entire workplace it's not just limited to the person that does the hands on work you can even look at the anesthesia sheets of john crane themselves and one of the things they talk so it is use of this product can put you at risk of developing diseases including lung cancer which is the very disease that mr bowles that in this case the recognition on their part that's the created was perfect ventilation on those ships that's a credibility issue for trial that's for a jury to determine and assess that's not the function of summary judgment to issue a summary judgment is does the product create dust was the individual frequently and regularly in the area where that does was generated or if you look at factor and weigh my or were they in the general environment of that workplace which is exactly what mr bowles was he lived on the workplace his daily routine took him throughout the entire workplace and they answer your question justice turner one of the things that mccaffrey did say and he actually said it day seven six fifty one and then again at seventy six fifty four the record is you could have avoided being exposed to the dust from these products that was his testimony that's the john crane expert well if you just take a new gasket if you're taking packing a bit of a pump if you're taking a gasket off a steam line it doesn't come off nice and clean you have to work at it use a grinder wire brush and all the tests that have filled including  there any evidence that desperate released i don't think you got an answer the question but at fifty two fifty fifteen and fifty two twenty eight of the record salvatore lopez which is another individual ship i was on board from fifty six up through sixty with mr bowles and he said there was best released from every part of the ship when the guns with fire that was what he testified about terms of these installations that were on the pipes including insulation that mr yvel indicated included in place owens illinois hello that was the testimony that you received in this in your first movie regarding how many times guns firing were specifically how many rounds fired while she was on this there was mr mccaffrey talked about it that it would have been a regular occurrence that's his expert testimony in addition to that mr revelle testified at page fifty two of the record the firing exercises occurred every time the ship was at sea and in addition to that he indicated in mccaffrey backed up as a naval expert as well it's not just firing the guns once it's multiple concussions that you're going to have from multiple firings that caused this dust and there's no procedure on these ships where the best out  occurs and they evacuate the ship and suck all the dust out i mean it stays in the environment and that's why this case is akin to the spain case which individuals on this panel were a part of when that opinion was issued back in the one nine hundred ninety s which is that products run the ship they created dust this individual lived worked and slept in that environment and the expert testimony in the case is he could not have avoided being exposed to that dust and for that reason he should reverse and let the jury determine the