exposed to chlorine gas and there's a fifth clime by mr kent higgins where he continues to claim that he has reactive airway dysfunction syndrome are a d s as a result of that two thousand and nine exposure to district court granted summary judgment on all of the claims and in rejecting the argument that expert testimony was unnecessary probably some of the claims it held where someone is claiming a permanent injury such as asthma then expert testimony is necessary to prove the causation now that made i think that is true when you're trying on a permanent injury when you are discussing an e r admission the day of the exposure i don't believe expert testimony is necessary in our cases in my opinion are much more on point on that issue compared to their cases which generally refer to people alleging they have suffered permanent injuries as a result of a chronic exposure such as burning in the eyes chest tightness vomiting najah no one disputes that those symptoms are rose as a result of the chlorine exposure of the dispute is whether he is still suffering symptoms to this day as a result of that exposure even their expert testified i do believe your client had an irritant help with that but they weren't permanent forty persons forty to fifty persons were admitted to the hospital that day from exposure to chlorine this record and the defendant admitted liability which also needs to be pointed out on this record the district court at the lease committed air and entering summary judgment on all of the claims at most assuming its ruling on the expert was cracked which i don't think it was no get to that but even if its ruling on the expert was cracked it should have granted some partial summary judgment claims does not need to show permanent injuries to recover under any  all law and the other point i'd make on this is certainly dr hacks opinions regarding the immediate effects of the injuries would be reliable now on the issue of the experts testimony i believe that this report committed some errors of wall in imposing some legal requirements that don't exist and certainly do not exist to the accent suggested in the order first says a plaintiff is not always required to prove the exact amount of client in more than a year later right but what she did is she referred back to records from at least august of two thousand and maybe even closer to june of two thousand i wear the previous doctor had done a poll and ology study she had some data at the time of her first diagnosis the order makes you think that she never had the results of the first phone ology study she certainly did if you read the entirety of her deposition is clear she did alternately have the first call knology study and then she did her own to compare it to and her diagnosis by definition is requires exposure to an irritant that is what ari says there's a lot of discussion in the order and then  free we can trust doctors to make diagnoses perhaps but oftentimes doctors don't have the rigor that's required form a causation of pain that is sometimes true but here we have a diagnosis that is tied into causation it's reactive airway dysfunction syndrome and she testifies in her deposition that by definition it requires exposure to an irritant that there is no legal requirement that an expert be familiar with specific chemical that was involved that he found then elicited testimony from her that she has twenty years of experience treating ari it's an asthma she has the experience to make all of that treatment her conclusion that chlorine could cause this is not controversial in fact there was an image of the us that was in the record their own expert referred to the him as ts there's no controversy as to the general causation and they are point on that the requirement that she have knowledge as to chlorine that almost reads as though the expert as the order is suggesting she has to have superior knowledge to it it's actually not clear it says she does not have superior knowledge it begs the question superior to whom the case law things clear the foreign experts has money to be helpful it needs to be superior to a lay person well she has twenty years as a board certified public knowledge as treating r a t s treating asthma so she certainly has the qualifications to make the diagnosis what is the state of the record with respect to the pollute knowledge of knowledge of just so i can direct you to where this would be in the record but it's her august eighteenth two thousand and ten water that's her first visit where she's writing a letter back to dr zaman and and this court it's document fifty dash five appears on page four a line in the district court of this document to await she writes prior to the exposure he has had no respiratory symptoms at all and no history of any kind of respiratory related problems including asthma she then goes on and page t  her she goes through social slash exposure history and she writes he has a lifetime nonsmoker it is not exposed to second hand smoke the patient works as a contractor for telephone cable company he denies any significant occupational  be if we're talking about generic asthma but not our i d s example they talk about well he's overweight which she denies actually has much to do about them at all but even if it did that doesn't affect r a t s so the factors the fairly close but then that's why you go to the poll when ology studies and there's a lot of this question a deposition about does he have a restrictive problem or an abstract of problem the obstructive would lead more toward the are a restrictive would be more in the neighborhood of asthma in these other conditions and she goes through why she thinks he has both and for the restrictive point she can see that him being overweight could affect that but she says there's also an obstructed component and that flows back to the aright the yes diagnosis so this idea that she's not considering any of his preexisting conditions i think that's contradicted by the record monster a little time for a ball yes i do  as an organist has been raised to my knowledge right here today what claim i'm sure the claims of the other people besides mr he gets the other four or the other three personally i think that has all been waived i also think something that was said the days in not in the records wired's or to look just in the record to see what was there but i think the issue here is that the focus on the temporal component that's what they can to seem to keep focusing on that time the fact that there was an exposure granted he wasn't in the area of the exposure at the time it occurred that is an undisputed fact in this case he was nowhere in the vicinity of the exposure he came back because he received phone call and he came back to the area worried about as was mr higgins and then he came back like i said if you're a year later he talks about one thing it's interesting when you talk about dr happy's studies when she first saw him a year after this incident she did all she had was the pulmonary result from the previous doctor she did not have any of the underlying data and she talked about how that underlying that is important she didn't have any of that she never went comes to his prior medical history oh she had with his self reporting she never did anything in addition to that and i think that's the distinction that's why we make the distinction that's why frankly the case law makes a distinction about diagnoses and causation the doctors are routinely making diagnoses and they routinely reach to routinely do that based on the reporting of the patient causation something a little bit different it's an external causation and usually that's why we look for something a little bit more and in this case this is a toxic tort case the pickens have to prove for the negligence they've got to show approximate causation to do that they need expert testimony we believe that indiana state substantive law would apply on that in the context of what showing that for example the dose of chemical that mr higgins was exposed to could cause rats but they also have to show a specific causation which shows that in this toxic for type environment and it shows that the actual both he received did cause his rats so your position is that you have to have the exact amount of chlorine in order to determine it me so you could actually theoretically have an expert who couldn't quantify the amount of chlorine in it but but you're saying the key is the exact amount of exposure or higgens can succeed that is sort of what i'm saying i think that if in the event where you don't have the exact amount and i think this is consistent with the rads cases that they raise in the event that you don't have the exact amount you have something that their doctor says is required and that is substantial there's no dispute that there's a substantial amount for example in some of the the chemical actually spilled on the person and then they would look at the oh the im efforts to get to the material that sheet and they would look at that sheet and say ok this is really a small concentration so the fact that you actually received a huge dose there isn't the speed of that was mass and then they may not know the actual quantity the actual number and i think in those cases it was ok because again it was under speeded that the that the patient had received a substantial dose here basically it all comes down to not quoting her at this point it all comes down to how much did he actually receive how much did he and he will so it's not just an exposure that's going to do it a pouring or this corner gas it's got to be a significant or substantial amount and that's what we dispute the doctor in this case did not know because again she's going solely on self reporting she she thought it you know if you look at her letter she thought it was a work related accident that had nothing to do with his work this was just you know he was there for boy scout troop  so there's there are some errors in this up reporting but she says every time it's not just any docs that's going to do it's got to be a stay in an amount of both she uses the word significant because that's what he told her i received a significant those she doesn't know she says you know for purposes of my diagnosis i didn't care how much he perceived i'm treating his symptoms i'm looking at what a symptoms are and i'm saying ok what's going on i think you have r a t s i refer to it as rats but you know i think you have that issue and from that point i'm going to start treating you this way so little and she was using was in the treatment mode correctable treatment correct and in fact i think i think it's a great point because what happened in this case if you look at the procedure posture of this case you know now they're complaining about oh we don't we didn't we don't think we need an expert but they've always known they needed an expert they actually had an expert they had dr margarita they had an expert come in and he was excluded then our motion for summary judgment was filed and then in the response was the very first time they ever said sometime in the interim before i get to the response of the summary judgment sometime in the interim we did they deposed their doctor we never had the opportunity to pose their doctor they deposed their doctor and when they did that we cross examine her but a question there was one question in the deposition that kind of hinted at causation and we immediately objected and we said she's not a causation expert and the response which i think is critical wasn't oh yes she is or we've already designated her guess she had the response was she can talk to before the trial was scheduled in this case that's when they first said not only that she was their doctor expert but also that she had done this differential they say diagnosis i think the correct term would be etiology is how she had that was her they say he was i think they diagnosed him with a mild exposure and it said that he had vomited they say that he was in the lazy river which is not this is a lazy river attraction when i say lazy river it's a water park and this was the open air attraction they had there where this release occurred they say was an in the lazy river which is not true he was actually and that's on the speed of at this point he was actually leading the pack at the time but he was nowhere  crime do know that we do and i think it is true that there were there were probably forty others are making up that number i'm not sure if that's the correct number but there were other people i mean this there was a release that occurred to people to get sick but it was something for everybody  the rats diagnosis she typed she tends to roll in and want to be a massive exposure again she always quantified that and she also admits that it was plaintiff's history history upper illness respiratory illness like your bronchitis things exhibit two atlanta and it's page forty five of her deposition and she says she says she admitted to me she being questioned but she admits that the that a patient having a long history of ever upper respiratory illness like bronchitis sinusitis things like that could eventually develop into brett and how extensive was his history i know i understand it was self reported what she write down or indicate i don't tell you incorrectly i don't want to make up something and i know she says it was a long history i think we had we had the records and this was in response to our question we had the records that we knew that he had a long history and he was on it started because he was on a lot of drugs a lot of like prednisolone and drugs for upper respiratory illnesses i think in the three to six months prior to this exposure and we were saying what was that had to do and at first the doctor seems to be suggesting that it's separate because it's upper respiratory as opposed to rats being in this in the chest and then she admits that it could develop into that but she never rules that out she never really talked discusses that other than that one time and these records are that those records were available to the port his prior medical history records or that or that was part of what talks about possible sleep that me at that point she did know he had it she was testing him for sleep apnea but she never rules out any of these other things she just goes to and says it was this massive exposure which again the massive part is coming from his reporting  you start with real briefly on this will twenty six issue actually that was responded to in the summary judgment responses where we pointed out well actually we disclose this august eighteenth two thousand and ten letter a long time ago the earthing is interesting is  they excluded dr margarita they were complaining about inadequate disclosure for him and what they said at that time was that defendant makes no objection to inclusion of dr hakki the expert here and dr shady that and this court's docket document number fifty dash to page one ninety one that was back in two thousand and twelve when they're saying they have no objection to how we disclose them so let me ask you this the medical records to the medical records reflect what counsel represented here that he had had a long history of upper respiratory problems it does not reflect long history what i'll say six months prior to the incident doesn't even necessarily say that what it that's all it says in the record in the deposition they ask if he had had and the deposition she states that was a long history that he had an upper airway problems yes that's an er deposition the record just says son ryan itis right but but she knew that she knew that it had a long history so that's where that language comes from the depth sure sure and in her deposition she's indicating she isn't regarding that because that's  give the reason as to why she rules she says that's the primary reason versus these other things i think primarily it's the absence of any of the symptoms he's reporting until june twentieth two thousand and nine  and your record the document fifty that was five it starts on page ninety five and i suggest reading the entirety of the deposition because we can both pull out snippets that help us or hurt us but i think ultimately the summary judgment was