apple e for approximately causing the death of plaintiffs to see it and the threshold is two in this case your honor turns on the duty to witness the medical emergency i will be addressing the first issue related to and i will reserve time for my co counsel to address the additional issues regarding this ability of the expert who was struck at the trial court level plaintiffs are asking the court for relief  today to reverse and remand for the district court his error in striking the plaintiff's expert in hall based on the grounds of lack of reliability and a da sander the trial and not material to the case that was the abuse indiscretion plaintiffs have met their burden if you focused on the breach of duty of care that gave rise t for the court to understand is that the first breach by defendants that proximately caused plaintiffs besieging death was the fact that there were violations of the airline's own in flight polic that there is no evidence concerning precisely when she entered the laboratory how she felt at the time what action she took four hours she was in the laboratory when her illness began and how long it lasted and the facts of the kitties seem to indicate that she went in there evidence is that there was a duty to witness this a lot this person who was alive in her heart was beating at the time that she entered the lab but for the breach in the flight attendant leaving his post he would have w event he would have seen her enter the lab he was required to remain president until she left the lab and then and only then leave from his jump seat at that back after the plane and move forward the second breach that had occurred th and needed to deplane under federal law he is required to stay at that post for this very reason he sees him and certainly this is a tragic circumstance but you're you're assuming that she went into the bathroom  she was having some kind of a heart event and that if she could have found a flight attendant at that point she would have made contact or communicated her distress in some way no your honor he was required and all three flight attendants as well as the two pilots were required under federal regulations to make sure before they deplaned that all fare paying passengers were off the plane he broke several law the not only did the one fight flight attendant federal law in allowing this person to be in the lab and monitored while he left his flight seat and he also in addition broke federal law as well as a second flight attendant by leaving the aircraft to help that mother with her child those policies those laws are put into effect for this very reason because there is a duty by this very relationship that this is a fair paying passenger and farragher laws require it is critical to understand that this was the last flight of the day the plane if it sticks ten made it safely and alive to the gate she was not in it the record is very clear that and we have established the fact that her life more likely than not could have been it had the airline simply followed federal law and utilized the life saving procedures they had a duty to know that there was a passenger in that lab they failed to comply with that duty the reason the first breach that occurred that approximately caused the deceived instead is that the flight attendant did not remain at the back of the plane therefore he did no second the two flight attendants the plane along with the passenger that's another reason why they never knew that this passenger was in the lab the thrust of the decision below that there was no causation here there's no medical causation rather than there was a breach of a mandatory statutory duty required by the f a r there was a breach of a mandatory statutory duty no your honor the district court erred in the abuse to discretion because he failed to look at the facts as well as apply the law the cause ation elements have been met there is a cause will nexus a close proximity to the defendants multiple breaches unfortunately the disc district court focused on final breach the failure of the airline to resuscitate he didn't focus on the multiple breaches prior to the last breach the reason why there is not they're an witness plaintiffs to student couldn't have been in a better place for had a better opportunity for survival the american heart association clearly indicates that if you just faerber lates or even allow having failed to witness or had he simply done his job and stayed a man to that station and watched her monitored her witnessed her she had over a ninety two ninety three percent chance of being  says but what i have a hard time accepting is that you have met the requirements to establish causation in this case by referring to those had she had had she been outside in the hallway and had her final fatal arrhythmia and it didn't witness they could have brought her back more likely than not by doing c p r by calling by doing the distemper later it's called the shock of life for a reason by the american heart association because it break it brings that fatal arrhythmia back so that the heart can function properly and that is the cause ation there they had a duty to witness they had a duty to administer appropriate aid to make the phone call which is step one according to the four step chain of survival step two to administer c p r which these people were very well trained to do step three use the deferrable later which absolutely would have brought her back again hurst her chances of survival at that stage had they simply witnessed this event within the first minute of utilizing the defender later was a ninety two ninety three percent chance of survival the federal aviation regulations govern what flight attendant duties are on the airplane but continental has an in flight policy this is that extra excerpts of record fourteen zero zero eight and in that particular policy it forms the flight attendants if you have children or passengers traveling with children they must remain in their seat until all other passengers are deploying they have a duty to monitor and this is what we call a a what they call in our own flight if it's an initiat fact that we the undisputed evidence in the case is that the planning process took one to two minutes that mrs connally did not enter the lavatory because the two lavatories were occupied in the brief i even start out some some reference where the trial court mentioned the hypothetical saying both of these laboratories were off occupied by two children until after the plane was parked at the gate no one could get in the lavatories miss cano goes to the lavatory she was supposed to pass two flight attendants under federal law and under the regulator and under continental express written policy this flight attendant left the plane in violation of your arguing duty again in breach of duty seems to me the thrust tells also that to you as well seems to me the thrust of the decision deposition about his opinions and he was asked do you have an opinion as to time of death one of many opinions he said yes i do he was even asked to take a pen and calculate the time which he did that's an opinion as what the court was critical of but our point is that we don't need luck without dr lee's timetable we have to look at this just statistical chance of survival and apply those to the facts mess canno would have been discovered with then three to five within two to four minutes after she entered the lab and would have been within a statistical chance of survival irrespective of dr lee's opinion and if i could address some of the peer literature first of all what the court has to understand there is peer review support that ninety one percent of the time all ventricular fibrillation is ninety one percent point seven percent of the time is preceded by some period of the tax and the peer literature says it can be from seconds to minutes understand it in the district court after reviewing the alone article very carefully said that the timelines that dr levy used either under his initial fear factor theory due to the lights being off being then that they checked the last one the last things they do with the planning one to two minutes after the planning that would have been within the statistical five to seven minutes and the over arc article there's a seven to ten percent diminished opportunity to resuscitate it exceeds fifty percent is between five to seven minutes if a person is not discovered and administered the force of that chance are viable then the probabilities are less than fifty percent so my point an opinion about what happened to her and her immediate afterlife is irrelevant to the issue at hand it doesn't affect the material issue at hand and that's the second prong of the daughter task seems to me the whole key is not what happened afterward hospital or anything seems to me is the key is that she had to be discovered with a certain minister in order or who have been causally situation correct and had everything been had the flight attendants performed as they're required to perform by their own in flight manual by their own testimony within one to two minutes they would have opened the laugh so we have two scenarios while declaiming we have two scenarios if mr just stereo was standing there outside of each laugh he would have encountered her he would have observed or probably would have communicated with her she may have asked and i used to laugh that didn't happen so there's a monitoring opportunity that was missed ok required to remain on board until all customers have the plane and then cabin crew customer cabin crew is required to check lavatories and all rows prior to a for customers party deplaning it's in their own polic ironically because mr day's the stereo left the plane and she wasn't witnessed going into the louth that placed her in a situation where a flight attendant would wouldn't say well gee we don't want to open the door she needs her privacy let's just leave her alone no no no no that means physically open the lab and make sure they're not in there so the point we're trying to assert to this court and the trial court did acknowledge it at the hearing but not through its order is that dr least opinion there first of all the to the time line if they had to if they breached the duty to monitor they breached the duty on their own policy to open the lab within one to two minutes now we've got an issue of fact for the jury for the jury to decide the proper remedy she fell to the floor we don't know so but assuming argue window that she didn't fall to the floor under the o'rourke article which is in the record excerpt record thirteen forty one is that ten percent chance of survival even if you reject dr lee's opinions which are not they don't they're not they don't say that they're not necessary to the case then we still have an issue of fact so it's an abuse of discretion  gears to that if you striking the testimony in full as in all the of all that this doctor asked in a deposition handed the pen in a notepad and said tell us when the time of death was and he did the calculation and because he gave an answer of his opinion and offered that conclusion that should not remain render his entire testimony inadmissible and to go further with that the trial court didn't find that that the articles that were submitted did tangentially support they just didn't say ten to twenty five minutes but they did say ninety percent chance a pretty monetary sentence and out of those ninety two percent chance that have the period of ventricular tachycardia before they go on to figure sixty two percent please important bill boyce on behalf of i have to leave continental airlines i'd like to begin with judge miller's question which is we are here on causation we did not seek summary judgment with respect to the standard of care i think for purposes of today i would have to concede that there is a fact issue with respect to whether or not the standard of care was satisfied there was expert testimony expert affidavits expert reports on both sides of whether or not a standard of care with respect to checking the laboratory was satisfied whether that means looking at the indicator on the door versus opening it up so the direct answer to your question judge miller we're here on causation that's the only thing that we moved for summary judgment on that brings us here today q turning to causation i think that it is important to focus on what is known and what is not known and i think what that leads to i would have made any difference and i think it's important to zero in particularly on what we know and what we don't know there is not known in this record the time that she went into the laboratory there frankly i think when the court looks at that specific deposition testimony the court will see that that number is pulled out of thin air that there's not a basis to say where that number comes from further guesstimated or speculated dr lee did that the plane was one third to one quarter empty or something like that at the time that she worked her way back from seat twenty three a to the real lavatory but i think what the court will see looking at all the deposition testimony including that of the flight attendants that it is not known when she went into the laboratory we do not know how long it took to clear the plane out flight attendant f that she did not have a specific recollection of the time it took to get everybody out of this m d eighty aircraft and i think if you focus on those two facts being absent that establishes why so much of what's been discussed so far is speculation about what could have happened what should have happened and i would like to zero in judge hog and  focusing on the another key question here reference is made to there should have been a laboratory check within one to two minutes and you properly asked one to two minutes of what i think what the court will look we'll see when the court looks at the deposition testimony of flight attendant ferguson which is it pages two thirty three to thirty four to thirty five of the plaintiff's record excerpts the one to two minutes referenced time period starting after all the passengers are off the plane but because we don't know how long it took for the plane to empty this day because we don't know when miss kanno went into the lavatory we are back to the realm of speculation about whether or not it would have made any difference and there's been frankly some some shifting going on here between what was positions that were taken or arguments that were made in the district court versus where we are here now in the court of appeals i do not understand from the trial court briefing or from the district court opinion i do not believe that that there was any  speech key component leading up to that time frame this the postulated set stages leading up to full cardiac arrest one point to the time periods that dr lee assigned to those stages and then the call button calling for help i think when the court focuses on dr lee's time frame that really highlights the weaknesses of the causation theory here because the district court did frankly a fairly remarkable job of zeroing in on exactly what the court was concerned about and asking for specific support of the court will find in volume six and seven of the plaintiff's record excerpts the slip sheets that the court prepared with the very specific questions identified for me every article that supports the stages identify for me every article that supports the timing of those stages and identify for me every article that supports fullerton which is really the it's the daily titan article is the only one that looks like it very straightforwardly says that here are certain stages but it's a student authored newspaper article i don't think it comes close to being a  reviewed medical journal type of article and what i think the court will see upon examining the delusion article is that timeframes vary widely that stages vary will vary widely here on this morning that's i believe a proper basis for affirming the district court's opinion and i think what's also remarkable here too is that this this was not done precipitously by any means the district court gave the plaintiffs multiple opportunities to explain the links to explain the timing as to how this would have made a difference under the very unfortunate and  unique circumstances of this case it's obviously hard to to point to some kind of analogous case i'm not aware of any specifically factually similar case but i do want to direct the court's attention to to one case in particular  it was a case where there was a discussion of that there was a claimed breach of a standard of care because logging companies did not have monitors fire monitors around the work site looking for potential outbreaks of forest fire the contention was that had there been monitors there a fire that ultimately did break out and consume certain number of acres could have been seen and addressed more quickly and the court concluded that that was too speculative i  no no your honor dr levy was a retired cardiologist and i don't know the basis for the motion for summary judgment for the challenge was not his fault or cations it's really a disagreement with his opinion and obviously there's it would be difficult for any court to draw a bright line rule and say beyond this there's too much speculation but i think when the court looks at all the circumstances in this case as reflected in the  everything the conclusion is that the district court here acted within its broad discretion under rule seven zero two and under dobber by striking this testimony and i think that's particularly highlighted if the court compares dr lee's written report versus his deposition testimony which is a fairly dramatic turnaround in dr lee's written report which appears page eight thirty one of the record of the plaintiff's record excerpts he is unknown how long this canaille endured of the various symptoms leading up to cardiac arrest he also pined at page eight thirty one during most cardiac arrhythmias patients are able to make it known to others present that they are having these problems contrast that with the deposition testimony appearing at pages seven forty seven through seven eighty seven roughly of the plaintiff's excerpts and i think the court will see that it's flatly contradictory and i elimination of the witness i think i think your honor that when the i think the answer to your question is yes it does fall within the district court's discretion underdog because at a certain point it becomes so speculative when you take the contradictions plus the lack of specific medical journals support for the stages or for the timing of those stages plus the fact that there are these unknown time factors such as when did she go into the laboratory how long did it take the plane to be completely empty then those sorts of things i think when all of these things are put together it's fall squarely in the district and the question for the jury i'm sorry it was partially full record well over one quarter full still wouldn't that have something to do with the time and the argument i think when there is no basis for estimating and i don't believe that garments now all of which point to immediate sudden death that would have made any asserted breach of a duty to find her not a causation not a causal link leading to her death that would made a difference i think under the circumstances of this case based on what is established and and the the facts that simply are not in this in this record after exhaustive depositions of all the flight crew  members and experts and so forth it ceases to be a jury question i think i come back to this notion that the standard with respect to daub or hearing when we're talking about expert testimony to establish the timing here under a standard here pursuant to arizona law where it's not enough to show merely a possibility that it would have made a difference that it would have been a probable difference i think that addresses part of your question  we can speculate about what would have happened if things had happened in a different time frame but at some point a speculation maybe it's maybe that's a possibility that would made a difference but it's not the probability that arizona l instruction with respect to proximate cause under arizona law but i think the low seat case defied earlier is an example where at some point we are in the realm of speculation to such a degree that it ceases to be a bottom line here is how i view this is a question of an abuse of discretion and under these circumstances i think the district court acted amply within its discretion by refusing to consider the speculation that was proffered by still for the questions thank you counsel the case just argued will be submitted for decision and the court will take its morning re