questions about whether there is any way to ascertain whether some of these perceived errors on your part had any impact we really don't know what  rounds the jury used which of several alternative grounds the jury used in coming to their verdict juror i could address that that you have three fundamental issues at least that cut across the entire been decided at least by the close of the evidence that would have never got to a jury there's undisputed proof that the statute had run by the time that the i s f corporation was sued in the  case the general verdict issue over winter factual issues that arguably even under your theory could have determined the statute of limitations issue i understand that that would be enough if there were to have pro if the plaintiffs didn't recall making and wouldn't that be a factual determination enough except that that's one piece of evidence of many that occurred to that many you cut across all lines one of them one of is that there was no testimony establishing that the amount of seal that was provided of failure to warn failure to disclose negligent failure to warn negligent failure to disclose and they step as designed the fact that he says went to the jury well there was no evidence of design defect and and frankly doesn't make any difference if you call the theory failure to warn failure to disclose negligence it all boils down to the same thing to the forward mind of so in this case one of the things suit you are critical of is the failure of the facts to provide testimony that the the hassle and he can tell you whether he made that batch we're not so doesn't know what we ate at least a factual issue for a jury to determine you have testimony from expert witnesses that the exposure that he would have had would have been sufficient to be a substantial cause we have the records such as they are we know that the substance will call it so i don't mispronounce it is present in the plaque at a time when he is working got to have something more your honor than just the fact that he's in the plant at the same time that the material we did isn't there plenty more than that is that he's in there doing a job that would cause him to be in contact with things that he that it least during the period of time that that he's working there your company is selling it it's becomes he is not in significant amount of  percentage of what is in the plant at that period of time isn't it rather a stretch to say for a fact it fully falls short of causation evidence that the jury entitle to consider and i don't think so here's what here's what his expert said when asked in cross examination can you tell us at any point in time whether or not he was exposed to be a s corporation diaster bill is answers i can't tell you i can't tell you what the concentration was i can never tell you and in fact he comes up with the conclusion ever be able to supply that type of information that it's done all the time here or the in the same room with that day asshole at any point so let's just take hypothetically situation where three entities are shooting poison into the air in a closed environment you're saying  under those circumstances to take the logical extension of your argument unless you show who's directly i only ingested company a's poison that  right and that your company supplied some percentage of the substance that causes that disease so it's not that far fetched to say that it's almost an impossible burden for someone to say i mean if you said it was there one day you have as you come up with the wall somebody else's substance was there three days yea at some point we have to say to the jury or the trier of fact here are the facts you are entitled to determine from these facts whether this substance caused the substantial damage to the individual and i would agree with you there is some point at which you ever say to the jury the question is what's the point wendy across the threshold that would allow you to do that mr soul he said for instance i had a substantial and overwhelming part of my time was spent making the noise ice cream flavor we can go over the records so we can look at the rest of the company and we can see you know what specifically was used with respect to making a big deal ice cream flavor who substance on a day you look at the records and you can link it up you could have a coworker come in the problem is the case that doesn't permit you just to say ok it's in the building at some point in time and the plaintiff is in the building at some point one time you got to have a little more than that and and the problem here and i think the plaintiffs reckon plaintiff recognize the problem their expert came in and said well yes of corporation can be liable irrespective of whether there is exposure to is no proof and there can't be any proof other than the trying to impeach the credibility of that that witness which maybe you weren't successful in doing but how does that really affect anything more now i know you're going to have ninety percent of his testimony was was testimony of the well by two thousand and four your honor based not only on what he told dr sherman but what the conversations that he had with dr rose from national jewish hospital which who came to the flavor camp plan in two thousand wor to do an evaluation of the workers exposure to butter flavorings including diastole and what he was told by her at that point in time which was you have an occupational injury and you're  incapable of wearing a respirator because your lung problems so bad because of the environment or that at that point in time he was done in korea where was the wiring because of the environment here i'm sorry that you just put i thought they were telling me and yes my but in fact he had he was already suffering from the injury the experts talked about the fact that at least  him before who diagnosed him with asthma were misdiagnosing but the problem is your honor it doesn't make any difference whether this specific name you give the that the disease you know you give to the disease make the cases of never turned on what the actual diagnosis yet the cases of always turn and you know you have an injury or you put on it but don't assess right by that's exactly right and as of two thousand and four by the end of two thousand and four it was clear that he had adequate notice to inquire further the issue because it was so clear ed a minimum it's a new trial so those were that those were two of the grounds that we said were the basis for a jane of the statute of limitations absence causation let me just i think his his explanation one when he was asked about that was i have worked with this material before and so i didn't think that there was anything that i needed to read to get was next in essence what he was saying ye i've that explanation speculation there there for example and we now cross into the other issue of whether or not the knowledge of the report from one nine three by the parent corporation you refer to is a g him that can be imputed to p s f corporation if for example that was knowledge that was given and was acted on we're assuming that people here would say wouldn't say well we have some new information on this substance that we're using and not only are we going to be changing our ventilation and i respiration policy but you might want to read this now that we have this new information i mean you're really assuming that there'd be nothing more was a person have flavor and who was charged with reviewing vitriol safety data sheets of various suppliers and writing their own the da s f corporation material safety data sheet ha reference to new information it was the only one that had reference to new information that information was a reporting of the results of this l c fifty study than eighty ninety three study reported clearly in of appreciation of it or whatever whatever whatever the safety person decide to do with rip with that information i can't tell you but it never was brought to anybody's that maybe the word moderately threw them off  so if the test results as with certain range that's a product that's moderately toxic as opposed to falling with a higher concentration which would be a lower types a city or a smaller concentration should be a highly toxic product so that's a function of of classifications of first apples not by da s f but by others and that's basically what the test is capable of doing is giving you a range of toxicity doesn't tell you anything about what happens in humans and it's not intended to  that there was a constant effort at the time of trial to work as you would expect a working distinction between the two and in fact their one point dr eagleman was going to testify was offered early on to testify well the the final point that i think that's across the the j o b issue is is this question of the imposition of a duty that we've never there's no question of me saying it struck me as just that a half step respectfully oh there were two of us commenting about the terms of mr so lisa's leaving his prior employer which i could see no relevancy in of all except to throw some money in the game well with some question about some of his credibility and and for the life of me well factored in the allegations that it doesn't really  that might be right if you can establish that be a s f corporation sold all mark sold to people who sold to omar or sold to people who sold two flavors of north america these  prior players at a time when plaintiff was working there that might make sense but that's not what occurred here that and again that they need this kind of flexibility in terms of timing because you can't prove causation case so what do you do you've got to look to an earlier time in trying to establish some linkage no matter how it's anyway to between b s f corporation and i want to be saying mr so least i don't think there's any relationship established with respect to mr sole lease but with respect to his oath or buyers their suppliers there's no proof of it in the case and it doesn't bear the theory out and in fact i don't see a single case that's been decided by the courts in this state that would permit this kind of a theory certainly in this record so i think that again that's another issue that cuts across the entirety of and of all t critical to the plaintiff's argument before the jury and one is the fact that they put on evidence of a two thousand and six change in the material safety data sheet i think that's highly defense i mean that was your defense part that you have multiple theories going that's right so does the court abuse are we looking at this sort of uses fresh and the ruling with respect to that yes and absolutely would the court in her discretion have concluded that your position that this doesn't cost or that the jury still out that conflict with the two thousand and six change that that might be the key death that might be the case  gives the middle east i think they could make it would say to the trial judge it's not an abuse of discretion to let that fact come in and let the jury wait however it chooses if that's if that's the way they've been played maybe you're right but the problem is it wasn't like that way it was and it was played as if there was an admission that was in the later books of the argument that the plaintiffs made and not the admission of the evidence i mean judging the emission of the evidence because i objected to that mission of the of the documentation we got on that and i don't i don't know if i objected to closing but see that's the real objection now we have a forfeiture issue on that right i understand but i maybe redirect or redirect at that point he was asked about whether or not he had figured out whether you get exposed to doing that counsel you're too good for that a series of you know page of calculations that i made just the other day and he pulled it out and he said well i mean you know looks like i work with fifty percent  which would have been hard to believe under any circumstance but that's what he did and he said well the reason he was able to figure that out is because somehow out of all the boxes of documents that were in the quote room  one document appeared on counsel table that was some sort of an inventory work sheet that showed how much triacetone had been purchased over some particular period of time first time that the documented ever the other one that i want to highlight for you because unless you want to hear more is the german m s g s and how that came into evidence because again that was something that was that was discussed at length during closing  it's an m s g s that was it made it into evidence over objection no foundation was laid forward no witness was called to testify about where it came from it appears to be something that was made by b s f a g at some point in time it was in our records and was produced during the course of the trial but not a single witness was able to tell where came from how it got there and nobody from germany was ever deposed in the case so that there's no evidence whatsoever that would establish a foundation for in addition i didn't hear didn't one not necessarily about that there's some there's testimony about there and there's testimony from several people appear as a corporation about how they might be able to obtain information if they requested it was the instruction was there some sort of limited instruction on this particular evidence or not i seem to recall an instruction that was well the the instruction of the instruction at some point was that it might not come in evidence that was the instruction during the procedure trial when it was displayed to a jury you're i'm allowing this to be shown to the jury it might not come into evidence at the end of the day oh if he was there any instruction about how that evidence should no explanation at all about what that document was other than it had a different recitation of the warning i know what that recitation is because i have looked at the what the basis of it is jury that way well it would never be displayed to the jury in the hour was displayed to the jury and then you admitted eventually into evidence in the case whether it was displayed or not they would have heard it and i mean is there really any legitimate argument to don't want to i don't think it's necessary to go through all the yeah the points of error with respect to the new trial suffice to say that there are many and while one alone might not be enough to get us to a new trial the the cumulative effect was to create a tribe that was so full of prejudice that we are entitled to a new trial but i come back to the premise of the argument in the beginning and that that is the under two troll the one in your long if any very submitted to the jury supports the jury's verdict then the various complaints that are made here go by the wayside and let's start with one that isn't affected by and if he knew or had reason to believe that back as much as he believed it could be was caused by an improper act by another party with the fact that nobody said that up until that point no no no it's not as much it's being exacerbated by this substance it's really would that make a difference in other words he would still know or believe at that point that he had an injury that was wrongfully caused you know it just if if you're if you restoration of the facts was the way that the evidence was presented in the case an issue of fact of what he knew when he knew it about whether his injury or his circumstance was an injury that was wrongfully cause doesn't back at least raise that as an issue of fact and if so obviously then we have an issue of whether or not it would be appropriate to grant summary judgment on that and take it away from the jury or the fact finding i didn't come back amidst this judge on this issue because because yes if there were any testimony i mean i mean anything that in two thousand and four it was discoverable by him the reality is that factual issue about whether that was new information a contested issue of fact we don't have the same results what we had no one who testified that that asthma was posed by the chemicals he was working with and no one told him there and said that that's a factual issue that is on that that was unexplored at the trial by defendant and i think they have to provide some evidence that it could be discovered by how could they put it on  same magnitude as the workers that were working around the microwave popcorn mixing that we were getting as the better and so we did that that measurement that was done by national jewish in the power room itself when they came t that pointed to that said that was the critical disability crossing point because a thirty five percent he could do nearly everything that a normal person could do including work when you get down twenty five percent you're looking at a lung transplant he can't even walk out of my testimony his opinion as to percentages well he testified that he thought that the b s f exposure was a substantial factor in this regard i can't remember for sure whether he said marks testified in in the case that they cite that exposes press best despairs disease and he couldn't be more specific than that we had much more than that here and i think that it was adequate for the purposes of  the witness testified she knew about it and decided not to tell him because it was confidential and they didn't need to know about when we presented it to play with them they said yeah we needed to know about it and we would have acted on so there was a link between those two things but in addition under  about it on their debt limit your safety data sheet so they had some information about it where they had to study at any point before two thousand and one there was no testimony about that from them and we couldn't we couldn't discern that but said he had told them something about it in two measures the instruction regarding the claim for all the four hundred seven series so i mean i'm just indicating that it isn't just working with a large quantity of the material and you know if that company's quantity and you can get in you can charge the client during the time for that he's working with if that's not at least circumstantial evidence of a cause and effect from that exposure i guess how went into the powder room during the two thousand to two thousand per time period it was the a s x daskal it wasn't magic and it wasn't improper mr skilling gave him the chart and cells in my question that i asked and he asked my cross examination proper answer so the reality is i think that we have met every test in regard to a very complicated case i think that the court correctly on these evidentiary issues but even if she consider our point that the damages are not appeals from in this case and they're not intertwined and in fact in the two cases that we said that why well because there was no there was no testimony which demonstrated that the jury was think of what they would be i mean other than i just can't think of what he did that would increase that she excluded from evidence she didn't exclude anything in terms of his coming up although the thing that was the only thing that was not do clearly in but it doesn't establish the point that they had in fact the testimony was completely opposite that that this was not discoverable to him in two thousand and four so if you send it back i think that the the berthing i would say two in fact called about an assumption of the risk defense which would be more you know keeping with what you were thinking that could impact the allocation affect all and boychuk said even in the case involving the sense of the risk that since they didn't challenge anything on just very briefly  that the name of the factor case i think that they'd like to try and run away from the factor case we are not under any circumstance suggesting an impossible burden for the plaintiff in fact the plaintiff with like shift the burden to us prove causation that the presence of a substance the presence of the plaintiff and the fact that plaintiff got sick is not enough and that's what that's what the proof is in this case up with the opinion testimony of the experts that links up the damage to the presence of the defendant and the presence of the substance and the defendant's or expert testimony your honor is that those three things presence of the plaintiff presents the substance and disease get it get you there create position let's read what  is on cross examination now is there any way that you can determine what concentration of b s f corporation diaster all mr soul least was exposed to when he worked at flavor gram answer from dr eagleman no can you tell us let's let's talk about the fifty percent issue mr mclean says i gave mr sol is the document he looked at the document i think the document he's talking about is the forward cam char of what was made on particular days and how and who's diaspora was used to make that i don't think it says in there i may be wrong maybe i didn't calculate it but i put calculations  based on what information i had in our brief i don't see fifty percent the fifty percent that that that i think is that the damning fifty percent is the piece of information that mr so least talked about when he calculated this from some document that appeared on the table and he pulled out his you know back i could calculations that back to me is not evidence of fifty percent regularity and those things haven't been established they weren't established before the trial they were just evolution during the trial and that is the causation issue that they want to run away from and have run away from by factor