two thousand and she is now eighteen years of age nineteen something like that and through all of this process going through this trial twice this family has suffered and that's the reason i'm here i'm here because the district court below committed what i consider to be reversible errors and most importantly the district court below exhibited his attitude about the decision that this court made last time and in a subsequent hearing  tried to blame me for the court's decision as if this court did not have its own scholarship capabilities and personally denigrated my integrity hey i got a thick skin that doesn't bother me now are you talking about there are several different here and so yes are you talking about the status conference that was held following our opinion so i think it's held three months that's when you connect spreading the mandate rights recommended the right to distinguish in the subsequent hearing was actually in september of two thousand and fourteen right and that was some sixteen months after the trial but two months before he r and i mean he was not happy with me because i made a motion for a status conference i said last time it took you three years to rule this time period eighteen months after the conclusion of the second phase of the trial my clients want to know what's going on i don't know how to answer them he did not like that he didn't like being challenged in any way shape or form and i understand that but i had to do what i had to do and what i did was totally appropriate and then when i got there when he started playing that tape recording of the oral argument i mean it reminded me of humphrey bogart in the caine mutiny on the stand with with you know manipulating those ball bearings counsel unfortunately judges are displeased with attorneys on numerous occasions but how does that amount to reverse my error in this case  went so far beyond the normal sort of pique that a judge might have a lawyer or vice versa you know we do this at the same feeling sometimes but when he demonstrated that he basically blamed me for his reversal and that he'd question my integrity which is the first time that's ever happened but didn't the court  state on the record that whatever our shortcomings he attributes to you he would not impute those to your client well he he said a lot of things like that i did yes but but doesn't says i'm going to get the last word and i know that you want to get me off this case but that ain't going to happen those comments made it clear this was not just  court who was approaching this the way any judicial approach should have been made that this this was not that at all and when you look at his opinion and you look at the  made for instance the poisoning the well analysis i mean it's just ludicrous he was completely wrong on the facts but that didn't matter he blew right past the facts because his anger was driving  groceries that well i'm sorry poisoning what well well he has his statement the reason that he in the order the reason that he disregarded the opinions of all the treating physicians including the three who testified was that i had poisoned the well because i had spoken with them and given them lab results results and other medical records and he said and he in appropriately said that was a violation of the like you know the case right now the twenty six b to a ruling that we cited in the brief that he cites in his opinion said that i had to get expert witness statements from them because they were no longer just treating physicians they were now expert witnesses now the goodna case testify to causation then you would have to make full disclosure and right there's nothing improper proper about a lawyer sharing information with an expert witness i assume the government lawyer did with all of their experts i mean i practiced law for almost twenty years that's what lawyers do but you've got to be guilty of malpractise if you didn't do it so that you know moreover it wasn't his point that you were sharing causation information with them and they were just treaters and he viewed that as improper his point was that i was influencing their testimony and their and their their diagnosis but the problem with this analysis is he was he was just wrong on the facts he had me when fact was he wrong and he wasn't wrong on the fact that you provided information to the treating physicians wrong on the timing of that and because he's wrong on the timing his conclusions he treated her and came to his diagnosis that vallium was the cause of her psychological and neural psychological problems in two thousand and three he gets he's going to have his deposition taken in two thousand and five i go back there to talk to him before his deposition and he testifies in the deposition consistent with his records and his diagnosis of months earlier a year and a half earlier i think that her problem was caused by family and toxicity now when when when the trip when the district court reviews all this in his in his order he says that i talked with kindergarten there was obviously something emotionally wrong with her neurologically along with her and so they got a bunch of doctors together including dr steven sharp who is a pediatric neurologist he's a colonel in the air force he decided after he examined her that she was suffering from salim toxicity i've never talked to dr sharp then she'd he's also she is also seen by her treating pediatric for you are following the procedures as the experts that that's what he was saying but it's not true it's not true because for one reason they didn't what what what is just a vacation for give this information t what is the point of having the lawyer give him what he says and more he does more than that your honor he reaches a diagnosis and yes i understand that's what doctors do but he does that in the course of treatment right what is the point of giving him this additional information on what her symptoms were the fact that she had peripheral neuropathy the fact that she had brain damage it's a philosophy and the fact that she had and and the only thing that fits that and why why why what's the point of giving her additional and giving the physician additional information after the treatment and before he testifies what is the point of that well it depends on what you're talking about when i'm talking about well that was just been even says point he thinks so that's the kind of things you ought not to be doing as when dealing with a treating physician now you may disagree with that you may think that he is long and that i'm not sure he is wrong the testimony of screen physician i can't trust the what's wrong with that reasoning this very point team up on on a dobber hearing before that before the case ever went to trial the first time around this very issue about giving dr renfroe lab results and medical charts from other doctors and and reports published published ruling and then when his new order comes out all of that disappears and he's and he's he finds something sinister about all this so before it was fine but now it's not and i and i i asked the court to look at judge matsch  delbert hearing ruling because that very point came up he's now as you probably know he's an article three judge in san diego but when he looked at it he found absolutely nothing wrong with it and  frankly i've never heard anybody say there's anything wrong with it now the goodman case comes out in two thousand and eleven i remember all of this this all this happened back in two thousand and three two thousand  goodman after the good goodman case by its own turn says it's only prospectively to be applied so there's absolutely no retrospective application so nothing that that went on was in violation of any federal rule rule twenty six or anything else in the thing wrong with it but what happens that the thing that was wrong your honor is is he said that i influenced them before they even came up with their opinion that's just totally fault it's not true records technical expert reports and a lot of information it was a difficult complex case it took a long time but just benito's wanted to get it right especially after he had been reversed by this court and his first  ruling is playing from judge the need as his opinion that it was based on a thorough evaluation of the evidence including a detailed examination of the written record and determinations of would witness credibility the district court's decision should be given deference there was no bias significantly judgment of the closest point colloquy at what happened in the ninth circuit and who gets the last word in what the attorney standard so very rare case would you agree with that that's correct and would you agree that justice kennedy's concurring opinion a stablished a much broader standard that would be easier for the plaintiff to make in this case and he cited the standard as his concurring opinion and like he so i'm wondering whether it's the majority opinion of like he or what justice kennedy says seemed to have the suggest was a standard sates to his concurring opinion and he had a majority of the court joined that opinion so i'm wondering if the standard hasn't changed well i would think that is even a very high standard and i'm not sure very end he comes back to it i mean he gets it off his chest but then he comes back to it well and let me answer this this is what i thought was really interesting section b one of the pla them their argument the first six pages are devoted totally to their view about why judgment it is was angry with the court's opinion and union address that at all in your brief eat you had one sentence in your introduction second sentence of the second paragraph of your introduction and then when you get to the rest your brief you never even mention it so my question has under ninth circuit law why haven't you weight that argument under the argument is that he was angry with the ninth circuit it was a natural reaction to you don't address it in your brief in your response a brief regularly relevant it was the first six pages of was the decision that we made ok because we didn't think it was relevant how many cases were in the southern district of california versus how many cases are in your district the judge was venting at the very beginning that hearing anyone to get off his chest we wish he would have done it in chambers too it's lockers but it's not a natural reaction it's not accept that it was three months after our opinion and then two thousand and fourteen or two thousand and two thousand and fifteen four years later he's playing a tape recording of the oral argument from two thousand and eleven so it wasn't just a question of venting he was still upset with plaintiffs console him with this court's opinion in two thousand and fifteen i think fifteen there you're going to judge bennett he was upset primarily with plaintiffs counsel because what occurred at that hearing is he was two months away from issuing his decision he had thoroughly studied the record and at that point he said he had read every page of there's a three thousand some page exam that he claims he read everything on hand but only twenty two pages were actually admitted actually that was admitted that was designated on the pretrial exhibit list of the united states there was no objection made by plaintiff's to that exhibit just the need i said that any exhibit that had been referred to during the bench trial was considered admitted i don't know how that mistake was made on the post trial exhibit list but that exhibit was discussed thoroughly at the september hearing clean of me no objection at that time to the judge considering that entire exhibit so that was a proper exhibit before the court this was a bench trial the court was the finder of fact and the judge's questions at the september two thousand and fourteen hearing where he was trying to reach his decision plaintiff's counsel had asked for the hearing had offered to answer any questions that judge the need as had just been he does have several questions for plaintiffs counsel he went through very thoroughly as you read the entire record you'll see right here yeah you'll see that he went through it very thoroughly did he hasn't questions and several times and i can go through them just benito's found plaintiff's representation is to be contrary to his understanding of the record and that's when he got to the point where he said he could not trust what plaintiff's counsel was representing and that's when he went back to the ninth circuit argument and he played portions of that argument to show representations that were being made by counsel in the case and i think that's one of the reasons why it took him so long to issue an opinion in this case but i will say that judge the need is did not go away how could that have been the reason why it took so long because he didn't have that here in until two months before his in the binion sixteen months advanced since the trial but he had been said have been thinking about that every day and that he had been rereading the record and looking through every exhibit and listening to the oral arguments and listening to the or argument because he did not want to get reversed again and one of the things that was brought up at the last argument was that where's judge the new this is finding on this issue it wasn't in the last order if you recall judge me this is earlier order was very brief his order this time was very thorough he went over every issue was very thorough and decided it and i want to emphasize that judge benita is did not have a pre determined judgment on rema he was very interested in finding out what happened he allowed plaint of more than a fair opportunity to prove the case allow the plaintiff to call an expert that had not been identified before the close of discovery an entirely new expert allow that expert to submit a cerebral report just a few weeks before trial began both over the united states objections allow players counsel additional argument and additional questioning even after all their time had run out that was given to them at the beginning of trial even allowed plaintiff's expert to offer a completely new opinion at trial that had not been disclosed in in the expert report and that the expert had specifically said i do not have an opinion on that at deposition so he allowed plaintiffs to put on a case very fairly and i should say that even after closing argument just benita said that he was torn between his head and his heart in this case and when he said his heart he wasn't referring to the government this was a case about a sick little girl and he really wanted to know what happened to her and he really viewed the evidence very closely he asked questions of both sides experts he was very concerned about the little girl and he was paying attention very closely and allowing plenty of every opportunity to the case any occurs in the party is that numerous times to settle the case i think including at that last conference so i may be wrong about that but i think even at that last conference two months before his you did opinion he's still in course a party is to sell them we went to mediation over a half dozen times in this and she referenced that because plaintiffs counsel provided material to them and they provided opinions that went beyond the scope of their treatment he did not apply that to the universe of the treating physicians in this case and plaintiff counsel said over and over again the treating physicians made diagnoses that lisi meyers had conditions related to bind exposure but if you look closely at the records what that really is is the initial visit that the parents had with the tree in physicians they described their daughter dahlia was related to the condition that the daughter has so it's just not true the treating physicians without mr cox providing material to them have the opinion that the daughter's condition was olympics but setting that aside judge many of us heard the experts from both sides and he made his own credibility determinations which are brutally bulletproof on appeal with regard to which expert testimony believed  correct and plaintiffs have not challenge the government's experts at all we had very qualified experts they all did a rigorous differential diagnosis and concluded that her condition was not related to the activities that occurred at the landfill so this is a case where it was a long complex case there was a lot of witness testimony there were expert witnesses on both sides of valuation witness credibility judge a judge and a decision in that regard should be given deferen i mean i would finally ask and it wasn't a pretty important to judgment it is that the government subsequently found out after the first trial that the younger sister who i think it's just been born maybe or she had the same hair loss condition she had alopecia elocution that's right yeah and it occurred over a year after they had moved away from camp pendleton so that no way is consistent with the time exposure and it went to show that it was a genetic condition  genetically predisposed to a preexisting genetic condition and a big factor also going to the parents credibility is that was not disclosed in response to a direct question that was asked both parents back in two thousand and five before the first trial in this case we only learned about it after the first trial how did you find out about we found out about it through a posting of a picture on my space the parents posted a picture of the younger daughter on my space and she had lost her hair and that cost us to inquire about it we had asked for family medical records as part of discovery the parents records and we were you know it was a big battle over whether we were allowed to get that or not in the  that we were not allowed to get that unless there were some other showing that it would be relevant so we were not able to get family medical history in the early stages beyond the records of the daughter lacey myers as you've been to me this would be that was certainly within his discretion but what troubles me is i've never seen a judge on the record be so hostile about being reversed and i don't know how else to describe it i mean we all get reversed and he said as much but he was really angry because he accused me of not having read the record i think what he thought was that you did not understand why he considered your evidence to be relevant to four he doesn't want he said he said i didn't read the record in the he did in that context yes yes and i think he thought he did not understand his feelings about why that was relevant to foreseeability but what i would say finally on the recusal issue and i'm almost out of time is that if he was so biased why wasn't there any material fact on the plaintiff's case why isn't there any clear air of well or way of how he didn't believe the plaintiff he didn't believe the plaintiff's experts then believe or trust plaintiff's consul but those are credibility determinations that are supported by the record so what would you expect them to do to say at the end of the opinion i wrote this opinion because i'm still angry at the ninth circuit opinion  asked that if there was a rematch to be reassigned to a different judge and we said i said i'm of the opinion i said no is that right ok now there's a higher standard when you don't specifically make a request right but are you familiar with the recent circuit decision and quick were says edwards that excused the party from making every kusa request  that means it's good to have the motion the government needs to have a chance to respond to a motion in order but it wasn't judge beneath us pretty adamant and he's the one that raised actually well no i think the plaintiff had said they have some good some concerns that his anger about the opinion would spread over to the plaintiff and then judge me that says well i know you tried to get another judge and that's not going to happen do you think that might excuse them from formally making the motion at that time i do not believe it does because it doesn't put the government on notice that it needs to make a response and argue why the judge should not recuse himself so i think that the highest standard should apply and judge benita said after that coll that kind of self serving when you say that but i think if you look at what he did throughout this case gave the plaintiff every opportunity to prove a case that is conduct which goes to show that he was not biased he was looking very carefully and also his statement after closing argument that he was torn between his head and his heart shows that he was looking at it very carefully and finally the hundred twenty page opinion which is very carefully goes through the evidence and there's four independent reasons why there was no causal connection that shows that he was being very careful there's nothing further  bit the thing that that i think mr bean commented on and that i think and i'm not quite sure what you know how it came up but  and i think it was an in questioning with judge bennett about how my comments were hit that the district court's comment to me that i know you tried to get rid of me and part of the ninth circuit and when he looked at me and said but that isn't going to happen it made it very clear to me that a motion to recuse at that point was was going to go nowhere and i would just further untag and eyes and so there we go you know i i had to i had to play the hand i was dealt that's what i did and i would just say one of the things on the poisoning the well