already been called worse we contend the district court heard when it granted sent its gobert motions excluding key experts for the with children and based upon that exclusion then granted summary judgment district court heard in these periods of three ways abuse its discretion by finding the analytical gap too wide between the vinyl chloride exposure levels based on published literature and the vinyl chloride exposure levels that confirm heard as a matter of law by excluding the opinions of two medical doctors who developed a differential diagnosis that ruled out all other potential causes and by doing so impose upon us a standard in which they really were to asking us to find a publi opinion or study in which we could find exposure at that level to children which we do not believe is what dog requires i would very quickly cover some important facts relative to the case their minor children the doctor they're not biologically related c w was brought into the home in eleven weeks e w was brought into the home and allowed to they both left the home in november two thousand and eight when the contamination was discovered we know when it's undisputed the bio corage and human carcinogen united states agency for toxic stuff since disease registry characterizes fetus infants and young children is highly susceptible population by a court exposure and we know that the ingestion of vinyl chloride causes sickness diarrhea and stomach pain there's voluminous documents in the record about medical i'll just simply say that the candidly we addressed a differential diagnosis but i'm going to discuss the abuse of discretion program because candidly we felt with all due respect the district court the district court was taking the scientific literature in really in the drinking water that was based on a calculation by the indiana department garmo manager their calculation she didn't use the conservative two leaders per day consumption based upon ingestion inhalation and she got  kilogram proceed up and so to be clear powder did not ignore dose she was employed to actually calculate that and she followed a scientifically reliable methodology as a board certified toxicologist reaching it's relied upon by powders it's relied upon by doctrine and what power finds and i agree with there is that the control is just it's just olive oil the first level that you get to is point zero three and she finds in a pines that at point zero three there's a correlation between exposure and sooner and this study confirms that now in any statistical analysis there's always some points above and some points below but i do does not represent misrepresent the study to say that when lab rats were exposed a point zero three there was a higher incidence of tumors if you look at the conclusions than the conclusions in this are worth fine vinyl chloride dependent tumors but i don't correlate shows current senate carcinogenic effects even at low dose to our literature doesn't establish a floor we do know that a point zero three there is a correlation no i don't have a study at point zero zero three but when you when you say well that's ten times higher mr bowman if you look at the study if you look at now tony the next step they took was point three the next step they took above that was one point seven so they did calculations in which they were exposed in lab rats the thirty times the level of the did show some correlation yes you can find a point on the correlation line and say look mr bowman those particular set of lab rats at point zero three didn't have anything get is we completely jumped over the differential diagnosis these children are sick the parents are spending lots of time trying to figure it out tree physicians are trying to figure it out they don't know there's exposer e w goes to  and they figure it out so you you know you have this impact the symptoms are there and i just want everyone to look at that well the court said that differential diagnosis is relevant to cited the turner case which is a circuit that says a properly qualified medical expert performs a reliable differential diagnosis through which to a reasonable degree of medical certainty all other possible causes of the victim's condition can be eliminated of that the differential diagnosis can be used for the general but i think we also met the general now tony is a good study i mean thank god we don't have situations where there's a study out there where levels of vinyl chloride at certain high levels go through kids but we find something where they sent it through lab rats we know what point zero three there's a correlation i think we have enough i think what is really what the district court is asking is as a standard too high for us to meet when the evidence shows there are these impacts in the scientific literature to support that at these levels ten times higher i mean i knowledge that we don't have a study of point zero three but i  think what the district or was asking for was these three experts that were excluded for them to connect the dots for him and say yes are ten times higher however this is how i'm getting from my opinion that at levels ten times higher i see this correlation and then as you have the impact shown you have the differential diagnosis you know the children who are impacted it's almost like an inconvenien discretion here the standard of review is highly deferential and we submit that the plaintiffs have failed to demonstrate an abuse of discretion in meeting the standard for three reasons one they've not demonstrated air in the district court's careful review of the scientific studies on which the plaintiff's experts rely on the court determined that each study involved either animals or industrial workers with those is hundreds of thousands of times greater than the involving many years as opposed to shorter duration is here of only seven months and eighteen months for the two different children next that this record genetics use its discretion included in concluding that the plaintiff experts had not reliably extrapolated from these high dose long duration studies the low dose short duration exposure we see here they provide what we say is qualitative guesswork in attempting to extrapolate from the studies and you're trying to compare it to a low dose there's different kind of quantitative analysis you can do such as model for example there is a model that has been used by developed by toxicologist and used by e p a it's called physiologically  based farmer pharmacokinetic model or p v p k model and what you can do with these models is you can plug in the evidence available from an animal say for example and come up with a human equivalent  you can plug in a certain route of exposure and see how that comes out in a different route of exposure so what you can do is you can extrapolate in a quantitative method from these high dose animal studies to a lower dose exposure for example in humans discussed some of these thresholds that they developed based on this modeling and this quantitative analysis these are shown in our brief pages six and seven and what they do is they come up these thresholds called the low that no al where you have no observed adverse effect level is that point zero nine milligrams per kilogram for day and that is a dose where there's no effects over the course of a lifetime which is what you recognize here is that that's the children's dose which mr boim bowman or walk through in calculated that dose is thirty times below the noel and they had short term exposure as opposed to lifetime exposure assume for thresholds another quantitative analysis you can do is you can there is the ability to calculate the effects of early life exposure the court actually  its opinion talk about ways cations baker vichy chevron one expert calculate adjusted exposure levels for benzene for early life exposures based on e p a guidance and they didn't do that here either what i want to discuss now which mr bowman discussed in his argument was the male tony study and that's the only the only study that the is the one they kind of hang their hat on is the one that's a political but were we submit that it's not even close first of all this involved twenty experiments on rats and hamsters to assess their whether there was any correlation between and cancer and there are multiple problems with their reliance on this meltdown the study and to quote trial court here they said its reliance on this study showed that the experts opinions rested on very flimsy scientific ground now first the conclusion that they've told you that the study reach is not correct they say that in the study showed an increase in cancers with an exposure eight point two three  say is only ten times higher than the plaintiffs those here but they melt when you study explicitly states that no increase in vinyl corey correlated term tumors was found at this dose that's language you cited in our brief page seventeen we point out the same argument for on their argument below the trial court specifically noted that the state of not reaches conclusion but here we here are here again here in the same argument so the effect was at effect hundred times the children's exposure rather than ten times actually the this study concluded that the lowest dose by ingestion it which case did statistically significant correlation was would be found is sixteen point six five when you have to when you talk about rats what you have to do is correlate that to human exposure sort of lifestyle a life span is so much shorter here this particular experiment we're looking at it's one experiment that they focus on from the mel tony study it's called bt bt twenty seven actually lasted decades and showed their calculation their brief and it was approximately twenty five years again we're talking about eighteen months seven months exposure at much much lower levels than we see in these studies the next problem with the mild tony study is that the study itself show that we had no direct application to humans at this point so there was only setting the stage for possible future extrapolation now you could try to extrapolate now that's not what the point of stated they didn't perform in these analyses the last point is that even if they somehow appl here it dresses only possible cancer effects it has nothing to say about non cancer effects such as the g i issues that they raise now what it's talking about the this  extrapolation point what the plaintiffs did is they basically did qualitative guesswork what they said was well we can apply these studies because children are more susceptible we can apply these days because exposure and we heard counsel say that you know the district court was weighing the evidence they weren't weighing the district court wasn't weighing the evidence it was a it was looking at the studies and  whether there was a remote reliable methodology reliable facts to actually find for general causation and it was they are experts presenting the studies or were they just presented as a core where the experts testifying is that at the at the hearing no they were they were actually submitted in the briefing of variety of studies and then their arguments made with respect to the political legal studies in the briefing so i think the  left with this enormous gap we call it an analytical chasm between the studies and the exposures we have here like to also address the differential diagnosis point  with the plaintiffs say that with the trial court committed error because it didn't address the differential diagnoses conducted by doctors dogs and buyers in determining whether they establish general causation now the court didn't have to address this differential diagnosis argument on the merits because the plaintiff waived it below they failed to discuss it before the court on the motions to exclude the proper can abuse its discretion an argument that's not raised in a motion to exclude was never developed in the briefing after that and you you spent a lot of time on it in your brief right in the summary judgment briefing right yes we did and we year in an interaction and in the summary judgment sponsor and here at the ballot for the first time here now on the merits court's almost universally although as you noted that the differential diagnosis is relevant to a general causation only i mean is irrelevant to a general causation analysis if it's relevant only to the specific causation analysis and that's because you have to rule in  case is like nothing like turner or any of the other day differential diagnosis case that so you can use it for a general causation what have an attorney or court is a suggested in dicta that a rigorous and comprehensive differential diagnosis could be use when there's a new toxic tort plaintive and the medical literature has not been adequately developed that's not the case we have here we do not have a new toxic tort at issue and we don't have a lack of it for them to have to be able to proceed you have to find some other route to do that what i'm saying is that's a rare instance and it's nothing like what we have here it's a completely different case where you have biomes of evidence you have these thresholds that have been developed by d n a and so what what they had available to them here is the ability to take these studies take this information and extrapolate perform a quantitative analysis you will never find studies or rarely find studies they deal with children and certainly deal with children in that very early stage of life where you know you would agree right that your cells are rapidly changing and that children at that particular age would be much more susceptible well your honor to two points on that first of all there is a study that was similar we talk about grove it's trailer park instance where they had very similar levels a longer duration four years versus less than two here and eighty s t r went in investigated and they found new health effects and no evidence that there could be any health effects so that's one instance i'm i'm forgetting the other point there your honor but well the other point i guess would be that you know you're also very it would be difficult to find studies that involve children at that particular age right if my other point your honor on that is that you can you can do this analysis to make it so it fits with the children's exposure there's there's methods to do that the other thing is when the e p a develops these health based thresholds they factor in susceptible populations they factor children elderly infirm so they put these safety factors and what you'll find is that when you look at these regulatory thresholds for analysis of health effects the children's doses were either at or below any of these doses and these doses doses where they've determined no adverse effect or even lifetime of exposure and what we're talking here is very short duration so that they get the evidence suggests that there's really no possibility everybody calls me brief it's funny that we talk about regulatory standers too is what these people should've been drinking too they got eight point four now we understand that just simply showing that they drank eight point four over to doesn't do it but  we're talking about standards they should have been drinking to when people are looking at what's an acceptable standard they want to i agree your honor there is an issue over this this differential diagnosis and as i've looked at my or this is this court i don't see an analysis of this and i was just rereading it there we read it last night i don't see analysis of as they went through with my or here you know it was a general or was it specific i mean i i do think that there is a question here as to whether the differential diagnosis can show that the general has spent specific but the other part of this is and i think it gets to what your honor was talking about even now tony as one of his conclusions then i'd read the whole thing but there's so much to do but just immediately newborn across this nation of dealt with this and candidly when you look at them they're they're divergent it's hard it's hard to get them make sense of i haven't found a case where an expert's excluded where we have young children not adult because adults can smoke and and have also brothers of young children exposed to a known carcinogen knowing that they had symptoms that related to that exposure that the parents and treating physicians struggled to figure out the problem and then a toxicolog relying upon the literature says you know if you drink ten times higher than that and and the mel tony point is there are charts that say at point zero three tumors or greater yes the court pulled out mr chambers pulled out a quote where it said c specific related tumors aren't related does say that but the charts that joe powders are relying upon show overall tumors there is an increased incidence of point three i haven't found one where those experts have been excluded thank