representative of the estate of her late husband ron asked the plaintiffs appeal from prospective summary judgments in favor of the union pacific railroad on their injury claims under the f t l a district court excluded their causation expert that they had in common doctor ernest cio to holding  court granted the railroad summary judgment in both cases excluding doctor cio and therefore granting summary judgment was error this court should reverse the district court's judgments in both cases and remand the case for trial the district court fundamentally mis and everything else the record it's not a denigration but focus just on the west case goodness gracious you have the one little bit of testimony about how bad these smelled and then your expert appeals to the authority of his education in the west case how do you have enough under any standard to go anywhere in the west case it in the west case it's not just how bad it is no your honor i think that's minimizing it a little bit that's a testimony that's the way well mark and it's which is also in her testimony she talks about how he described her how the air quality sucks how twelve hours the exhaust fumes were horrible the diesel fumes would come right back in their face there was no ventilation on the cat  this case if you look at seven sick and i appreciate your reference to the record mister turner in this case said seven hundred and sixty five's sixty six he says he's solely appealing to the authority of his education and he says he can't rule out all other kinds of causes and so do we end up with what's called in the trade and ip c dixit case and that's the supreme court standard as you well know why hasn't the best case end up being an it's because that's what he's relying on in the better case the court said that barbara was a witness to qualify based on his own knowledge skill experience and testimony based on his own practice in the rue view the evidence is  proper and then he uses that to use the scientific studies to confirm what he already suspected that's entirely proper and it's a failure to rule out some causes this court come many times including in the johnson versus me johnson case which help and i suppose you're right on that don't you at least have to kind of describe the work side and describe the exposures you know don't you think you have to do that these other cases mostly do that especially the several cases that you're very familiar with certainly theme of your brief that's a good thing but that goes to relevance it's highly all of it as you don't need much in it but it doesn't go i think this case is mostly about reliability you know the rd of the three in seven o two tell me why i'm not wrong about that free tell me why i'm wrong relevance your honor is whether this evidence is necessary to prove the plaintiff's claim to begin with for example these are medical injury cases so you always have to have some the  issue of causation is always relevant the issue of whether the allegation that the railroad caused the injury is relevant but once you get to reliability the rd factor then you get into you know what is this  and all of the district court's criticism of doctor she goes application is methodology is all about how would supply so as long as an expert uses reliable methodology which this is a differential any ology analysis and johnson input no to this court sa the feel is burden of proof standard including its modified causation standard and federal rule of evidence seven o two are separate inquiries and do not affect each other second this court's decision and right against willamette requires at a minimum for experts to base their opinions on dose and response and experts may not evade this court's requirement by testifying that there is no safe amount of exposure  rd the district court did not abuse its discretion in finding that doctor cio unreliably failed to base his opinions on facts or refused to even attempt to quantify dose and response and refused to even attempt to rule out or explain alternative causes as the sole cause of the injuries that today's dispute flows in part from an intra to strict disagreement regarding the standards for admissibility of experts between district of nebraska judges gerard and sward on one side and judge battalion on the other side judges gerard in the mclachlan and bettesworth case and in these two cases and the o'neil case consistently hold that the feel is causation standard and federal rule of evidence seven o two are distinct issues and don't affect each other well counted there in the same case and i think you have to take these cases each on their own facts that's what we do here rather than set wise policy and you're one of your main points was about exposure harder testified expose daily to fear few other smoke it was like a london fog he testifies so does it they had unlike the west case doesn't that get you almost all the way there and then she otoh does good enough i know we can't rule out age any of you patrick and i know it doesn't apportion but boy once you get back to the truism talked about it isn't isn't that enough no it's not judge and here's why this court is reviewing not what council was able to put into the appell but what was before doctor cio at the time he formed his opinions and that deposition from mister harder was taken after he had submitted his report so all that information and none of it is quantifiable either and he didn't do any well exposure daily as quantifiable daily exposure to all kinds of fumes i don't you think we have to have it down to the numbers of the dose i think you i think there of the day the whole record we look at what doctor chee otoh based his opinion on to determine whether it's reliable the district court found that as well that it wasn't reliable because he didn't base his opinion on any facts or data get extensive repairs of locomotives and then there at that he was heavily exposed to diesel exhaust well did you did mister carter tell you he was heavily exposed or is that your characterization i don't know it could be  that's it that's all he testified at his deposition that he relied on now on appeal counsel attempts to challenge these findings by smuggling in evidence that wasn't considered by doctor cio when he formed his opinions throughout the briefing it's just paramount to consider that this deposition of mister harder occurred after doctor cio submitted his report it could have been relied upon and doctor cio claims he had a telephone conversation with mister harper before he issued his exposure opinion but in his deposition he testifies he can't remember what mister harder told him so what's happening or what it's there burton is counsel's appearing before you and saying we should  everything that happened at this later deposition was told to doctor cio by mister harder in this short phone call even though we don't have any evidence of it and i don't know what's the closest case that has facts like these where the expert talked in can't remember you know  graham's give me give me a close case that tells me that you're right that you don't look at that that the district court doesn't look at it looking at that the deposition that has to one of the causation and all of that at the end as opposed to at the time the expert testified i don't have a case in front of me i know we cited one in our brief probably more than one but i would say that ok you'll need to call that to my attention because it didn't register it may be my fault i'm not after affect what the thought is relevant it affects whether it's a cause or the cause right and that's what counsel argues in his brief but the problem with that is the district court applied that standard in this case there's a burden of proof standard and the feeling provides the burden of proof standard and this is the the clark case and many other cases we cite in our brief i think clarke puts it best the feel it or not the feel of the burden of proof standard in the evidence here the standard are two separate things they don't affect each other and their example i think is an excellent one we dispose of criminal cases all the time with higher evidence or a burden of proof standard group beyond a reasonable doubt and civil cases with the proof i pr evidence standard were and we apply the same rules of evidence to them there's no alteration to the rules of evidence based on what the substantive standard is for burden of proof and we wouldn't alter things like the hearsay rule because this is a feel like case we decide whether the evidence comes in based on the it ensured rules and here the policy those rules is significant we're trying to determine that that decisions are based on evidence that of a substance present in the air that all of us breathe and i was just reading last night and i'd like to commend n b c versus associated no producers case for a discussion of that no say from out it is  lengthy discussion of the history of man and i and i and i thought it was very useful in the reply briefs counsel been both of them props up a straw man stating at least six times per brief that union pacific argues that there's an exact or a precise requirement for dos in response but not only does the citation he provides not bear that out i went through our briefs and text searched for rip for exact and precise and they don't have those words don't occur even one time in our priest but the argument here today though mister graeme's don't you just argue that earlier though that you need a precise amount absolutely not given no there's there's no question that the expert doesn't need to provide a provide precise amount but he's got at least estimate was sufficient to cause cancer in a human subject being subjected to the same level of exposure right so all the dosage requirements requires is just that he was exposed to these toxins and that toxins were sufficient in quantity based on whatever evidence he's got a record to cause cancer in person who's objected to that level of exposure is not  that's required gas to reliably a pine about both parts of that medical causation question so there's got to be evidence of general causation and there's got to be evidence of specific causation and the general causation amount is how much of this substance can cause this disease in a human in human beings in general and the specific causation is how much of this substance was this plaintiff exposed to and you know was a greater then the then the threshold but he has to make some effort to quantify and provide evidence at a minimum according to right against willamette to show that there was that there was a exceeding of the threshold amount and here he just didn't do that he didn't do the work there's no effort to establish the threshold amount in fact he refused to even try to do it there's no effort to establish in either one of these cases what the actual amount of exposure was there are hoc efforts to bring in evidence that wasn't before doctor cio at the time he made his opinions in these cases and when we deposed to be told us what he relied on and in the west case he relied only on that one statement that you know judge benton was determine mr west diesel exhaust exposure want mister west was a conductor slash locomotive engineer and in his unsupported opinion locomotive engineers generally have high levels of exposure to m wife said he'd come home from work so it filled with black hands and that he smelled bad and three coworker ron henderson's deposition but he didn't remember what mister henderson said ok there's no quantifiable information there at all and dr didn't attempt to quantify it he doesn't and this is in both cases does not know anything about doctor present the exposure opinions and he specifically states that he did not rely on them in this appeal at all psyched that that's t sixty he admits it in the west case and we attach this to the independent in the harder case on page two does not review and rely on this doctor prez's industrial hygiene report into any studies in taking samples interviewing cites he didn't review available air sampling data that plaintiff's counsel has from union pacific he didn't review material safety data sheets he didn't calculate or quantify anything at all and i would just remind the court i'm sure you saw it in the briefs that doctor sheo clearly describes his methodology in these cases and his methodology is the methodology circulates through the neurons in my brain and results in his opinions these are charitably not the methods and procedures commonly associated and used by experts in any of the fields that doctor chu it is qualified in as required by kumo tire it is as you mentioned earlier judg any specific details of exposures he's unaware of the length of exposure concentration and atmosphere of exposure he relied on no facts or data to determine the level or length of exposure is opinion is speculation based on plaintiff's job title and supporter with no further facts or data no attempt was made to review air sampling data that's available or industrial hygiene data that's available no attempt to quantify anything instead the court found doctor chio and i think this is true but he testified he can form a medical causation opinion without any knowledge of the type extent or to radiation exposure because any exposure can cause cancer did the district court address the exposed d daily testimony of harter himself i don't believe so but the district court did understand that mister harper's deposition occurred after his report was in and was not a part of the basis of his opinions it is simply not too much to say doctor cio never had any evidence of how much exposure either plaintiff had to any of these alleged substances the district court did not earn or certainly it not abuse its discretion in finding doctor cio those opinions were nothing more than speculation based upon the west at harper's employment at the railroad i see my red light is on me i close that they're the expert couldn't determine the exact exposure level but simply said experts know for a long time that the organic solvents that issue next were capable of causing injuries that issue and this court held that plaintiff only needs to make a threshold showing that he or she was exposed to toxic level and there again it was the electrician the workers own testimony as as to what what the circumstances of their exposure work as far as the standard of health but i agree that feel it does not change the standard at all but it does go to reliability it's as long as the pundits causation expert can present scientifically reliable evidence that the toxic exposure could have played some role however small in causing the injury testimony should be admitted and under under daughter the expert isn't required to rule out all possible causes so here you have a different actual idiology analysis everything you just heard from my opposing counsel is an attack on the application of that analysis and not the analysis itself he was ruling in causes he was ruling out costs they say he didn't have enough information to rule in the causes and that he shouldn't have ruined the earth he can't conclude about causation without ruling out some other causes that's all classic