case was the claim was discharged unlined else bankruptcy in two thousand and nine in so doing the district court imposed due process requirements on the quality of the notice issued in two thousand and nine regarding line bankruptcy impose requirements that are simply not present under the constitution we feel this is an example really judge of of hindsight bias that rather than looking at the correct standard under my lane when the bankruptcy discharge notice or the notice bar i should say the court look specifically with hindsight at what the dahlan scase was about about benzine about a specific site within a multi billion dollar lined bankruptcy the court's decision that dahlan was an unknown claimant is inarguably correct and the police don't challenge that as an unknown claimant dahlan was entitled only to constructive notice through publication and the publication which you'll find in the joint appendix you find a couple different examples the one that when the wall street journal which cannily is easier than the one from the clinton newspaper the publication complied with constitutional standards we have been unable to identify a single case anywhere in which an unknown claima challenged the the due process imposed upon it through a notice bar that passed the bankruptcy rules and this makes sense but you do acknowledge that the constitution would trump the bankruptcy rules if due process under the cited none that we've been able to identify where the notice was sufficient under the bankruptcy rules and yet nevertheless a reviewing court later the term that violated due process the bankruptcy rule ten o five require that we dollar what about the simple fact that you have a lot of been seen cases before all the bankruptcy stuff and like that distinguishes placid oil and some of the other cases you'd have a lot of cases you didn't mention the name of companies what do you think about those simple facts that were lacking in your notice will kill only with all respect i don't think that two hundred seventeen cases over a period of fifteen years leading up to bankruptcy but price it had none zero right never required bar date notices to contain information have you diminished the two seventeen it's over ten percent of all your litigation right now with all respect is over ten percent of toxic tort litigation toxic to it's not to it was ten percent of your geisha correct and don't you think that's enough to put you on notice and it should be in your publication i don't think that's the law the law doesn't require that much so that's case for you because that makes placid easy to distinguish fact that there are are not placid oil asbestos cases impacts what placid would have known about the potential for future claims it's just a standard that isn't present now what we have there and what we have then is a decision on the core part of this record which again we think of as hindsight bias that says for this particular plaintiff the process was violated because there weren't enough specifics about his potential case he didn't have to be his specific case it's just the whole class of cases that would come from the operation of the clinton facility the whole class of cases regarding benzene in the clinton facility one case well that's it that's what it turned quarrelsome but there have been no clinton bans in cases in the past and that again i think i think there's a risk of looking at this in hindsight just with the limited perspective of one player but maleng standard is not for every potential claim in the future it's a reasonable notice standard and and the the no to this isn't viewed from being in dollars point of view but the reason will notice under under malayan is taking account the balancing the balancing that takes part place place in every bankruptcy and that is it matter that he was not yet diagnosed at the time you know and i'm glad the court asked that that is one of the things that maybe is a little bit counter intuitive but placid talked about it a number of cases talked about non manifested injuries and the case on this kind of unfair though i agree with you what lesson says but then that same unfair there are a lot of things about bankruptcy like if you're a painter that provides for a company that will declare bankruptcy that's pretty doggone unfair or say it may seem unfair but the case on this is very very clear he was an unknown claimant with an unmanned festered injury but the claim arose prior to the bankruptcy and that particular issue judge was one of the district had no trouble with the plaintiff on notice to get involved the best thing i can say judge is this plan of had no trouble at the point that it chose to bring a claim that had no trouble within two years finding the company  like anybody else you can go in gauge a lawyer if you think you have some sort of an injury if you think you have a claim to make you go allege gauge lawyer do five minutes of research on the internet and the time and subsequent owners of the clinton plan it would be it would be extremely simple to do two hundred sixty there is simply no case that supports what the district court found here and the finding here we think is the wrong inquiry looking only with the hindsight of being down rather than the standard honorable way it is there is there another case like yours where there's such an alphabet soup of companies with so many names operating under so many places what's the closest case that helps you on that point i'm certain that there are bankruptcies far forward no no no no i mean in this kind of case you're relying on in these cases ships from terror right and the other cases right do any of those have your facts they don't seem to they sing to be one company one name one place right and there are no cases just for the sake of argument the enron bankruptcy for example if you think of the largest banks such as you can imagine there are no cases where the due process satisfaction from the more notice was challenged successfully by some unknown claimant in the biggest bankruptcy while in the  merits and then of the new york marina general life insurance case even though the circus had some writing back and forth under lopez and some other cases about whether you can reach issues like this and will fifty which were not reasonable fifty we believe this preliminary merits just like limitations choice of law standing those other issues of this court has been willing to review on appeal so we hope that doesn't so in this case we can review the denial of summary judgment of solutions and we're not relying on some the duty to warn in this case was discharged i can give you three different examples of how that occurred we know it was discharged because dean dahlan himself through the testimony his wife knew he had to be careful around benzene because it is a chemical that could cause you to to tell me because i thought even if it's open obvious under iowa law you still have to warn him if you know what hurdle we have to warn them about condition and risk the standard the i was there is the actual condition and the risk involved you know they don't have a strict open obvious rule like some states do not have this qualified rule i'd call it but let me get to the second element by which we satisfy the duty to warn them dahlan new that's pretty good evidence of what he was  we had to warn of the actual condition of the risk involved you'll see our warning on page twenty seven of our initial brief it warns of the actual condition benzene risk involved cancer tells everybody around there they need to do where people personal protective equip only make our warnings less effective if we were to say danger benzene but it could be really small amounts and it could be really really small and would be real careful over long periods of time that much to bother you that's a less effective warning and there was standard that says you've got to do more than the condition the actual condition and the risk involved a big i was going to say it's all there in black and white but it's really all there in black and white and red danger benzine cancer we warned the condition the risk involved and if that's not enough there were material safety data sheets material safety data sheets that were provided to his employer dollin transparent board and by all indications available to him we can't testify or indicate whether he actually read them or not but the duty to warn just like the jury found in question number one the duty to warn was satisfied we believe as a matter of law we've demonstrated with the materials late edition's one they said no on i'm sorry one they said no on exactly and six they said yes on exactly and don't we have to reconcile some way there and hole number six ok happily that's the next thing i want to talk about absolutely absolutely there is an irreconcilable conflict between the answer no way that our duty as a court under iowa law and our eighth circuit law is to reconcile them that can't be a duty that you have to reconcile irreconcilable responds there's any way to do it we're supposed to do it exposures in six and not more question one were the defendants negligent by failing to warn dean dahlan about the hazards from exposure to been seen at their premises the only difference between the premises piece of gone and six is the word at their premises as opposed to on their premises judge there is no principle way to distinguish those there are two to reconcile those the jury answer the neg question one no and candidly those with that were in the courtroom thought ok well we won if that's the case but because the jury was in given the opportunity to give inconsistent responses unfortunately did we couldn't exposure in six the implication being the degree of exposure versus any exposure that the first issue has to do with if there are hazards to be indian exposure there's a danger to the substance but in terms of the second question it would be to the degree how much of it you are exposed to no i'm happy to quote raise that no because because that question six has to be read with final instruction on final instruction makes clear that what we're talking about is not just exposure in the abstract but a dangerous condition case law is boundless here too you read the jury questions along with the five now you ask for a change to question six right yet you didn't ask for a change to nine write the final instructions yeah no ok now don't you have a little bit invited error here if you start making the argument you're making now now because there is now you ask for change why not the other mobile way be careful right let me address that i'm happy  as well there is no meaningful distinction to be made and we're not complaining we're not complaining that the question six there's talk about exposure to benzene was final struction i was talking about hazardous conditions fines or should not is correct it has to be hazard condition the change we asked for was to protect us against some other hazardous condition that hadn't been tried because the only thing at the trial was exposure to benzene so asking for a change between hazaras condition and exposure to injury questions six are in any principal way the same as to premises liability as question one which the jury already answered no two so it is our belief that even though we think we won after question number one it was an abuse of discretion for the court to submit it as it did and it was particularly frustrating as we warned of this exact problem you'll find it in the joint appendix page eight hundred which i will tell your in your rebuttal time you can constitutional requirement which does trump anything that the bankruptcy rules about survive the constitutional requirement is that a notice be reasonably calculated under all of the circumstances to give notice of a proceeding and reasonable opportunity to be heard and that's the test and if if what the notice was in this case is sufficient what this case would be what you would do if you were a company that had hundreds of parts that toward cases pending what you would do to get to put some kind of a of a back end on those claims where you have particularly a disease that is slow to manifest it doesn't show up for perhaps decades you couldn't do this overnight but you could do this in nine years and in this case it was done and in twelve or fifteen years you change names you change ownership lateral ownership back and forth you change corporate names through acquisitions and mergers and eventually you get to the point where you can file a bankruptcy petition in which you don't even mention the name of the company that would have been known to a point of who was who was to a victim talked to the word victim fifteen years earlier gross i like your fairness argument but the other side says bankruptcy like life is often unfair that's the real answer to that and they say that these cases you look at during counsel's argument which is that kind of student does trump the bankruptcy rules so in the final analysis it's it's what the constitution requires and what the constitution requires is an analysis that that includes the consideration of all the circumstances there may never have been a case with these circumstances and counsel in fact was unable to when i asked was on able to identify such a case this is what you would do if you wanted to accomplish what what lyondell accomplished i wasn't there i don't know what was on their minds but that's not the test the test is was the notice that they gave sufficient to under all of the circumstances with the circumstances are that this was a that they had that they were if they had hundreds of toxic toward cases they had i think one hundred seventy benzine cases alone in the fifteen years preceding the filing of the bankruptcy petition in the giving of their notice so they were well aware that people who had worked on the premises at the clinton complex at the loading dock during the one nine hundred eighty s during the one nine hundred ninety s more than eight years prior to their filing had been exposed to benzene they weren't just aware that there had been exposure to benzene they were aware that there had been exposure to a lot of been seen would it have been sufficient if they mention quantum what they have had to go all the way back in mention that the clinton facility itself from my point of view they would what they were that the test that i would apply would be what's reasonable under other circumstances and to me if i haven't taken it back in my mind further than i needed to take it but you could take it back further it would depend on the circumstances of the case i don't know what the history of ownership of the  to have to mention every little city in iowa you know because even this place has got two or three they'd loaded it one place they take it to another place and you surely don't have to mention the locations you know i think it's not i think what you have to do is look back  and under all the circumstances that confront you when you're figuring out what your notice is going to be published a notice or serving notice that is sufficient to to under all of those circumstances to to apprise people that you can identify that including unknown individuals but people who would be potential creditors who who in this case would have would have been exposed to the risk of cancer caused by benzene and you close what exactly in this case under all these circumstances do you think needed to be included in the publication odors well you certainly would need to to identify the company despite the fact that there are ninety two companies mentioned in the notice quantum neither quantum chemical company nor quantum chemical corporation which would be the two at issue was mentioned you they didn't mention the clinton complex they didn't mention cancer they didn't mention benzene if you are someone in the circumstances that mr darwin was in who knows that he's been exposed but who hasn't got any illness manifest and there isn't any reasonable way to expect that you will be aware that your time to go to a lawyer and see if you need to do something is now you just you wouldn't know that counsel argued that that the that the plaintiff in this case didn't have any trouble figuring out within a couple of years how to  e well after the disease manifested itself he was on notice that it was time to see a lawyer before the disease had manifested itself he should have been put on notice along with everybody else who was a potential client that now was a time to see a lawyer because there's going to be a bar date and so that's what needed to be done and at the very least you needed to tell him that the company that ran the place and it has been obscured through court i wouldn't argue with that because it didn't include the word been saying but but to me it's it's under all the circumstances it is so easy to include in the quantum companies and and it's so easy to recognize that if you don't notify people that those companies claims against those companies are going to be barred that what's reasonable to a given opportunity to come in and be heard is to name the companies but certainly name them at least mention the benzine mention the clinton complex mention cancer the point is that this particular notice for all of the things that it omitted was published in the clinton newspaper all the more reason to mention quantum because the claims go back for many years in the end there have been a number of mergers and changes of ownership and management over those years so so the fact that you put it in the clinton newspaper i'm living in cliff i'm mr down and i see that notification my local newspaper and i don't see quantum mention my conclusion is i don't have to worry about this  because they certainly would meant look they've mentioned ninety two companies they certainly would mention quantum and again their i don't think there's a bright line test to but there but there is a principled test it's well established and and and i think the analysis is relatively simple the was this notice reasonably calculated under all of the circumstances to give mr dahlan and people in his position the  awareness that there was a proceeding going on and that if they're ever going to do something about they're quoting him this was a time they had to do it and what you would do is go see a lawyer and you can figure out whether to sue somebody and who to sue which is what he did once he was diagnosed but you address the appellate argument that essentially the plaintiff's actual knowledge of the dangers of benzene sufficed for their duty to warn to meet their requirement to war i'm sorry that the victims actual knowledge yes if he was actually aware they've been seen as dangerous and mourning is not a basis for my belly absence of warning insufficiency or maybe the best evidence that he was that he wasn't the mr darwin wasn't actually were would come from the testimony of mr tubbs he didn't know what the actual limit was for benzene exposure he didn't know how much benzene it would take to become overexposed to cause killer to cause cancer and anything else of a he would have absolutely no idea if he was ever actually over exposed that's that's an industry  not just was he warned about the the hazard of benzene exposure but was he warned about the exposure at the clinton complex and the dr klein complex in particular that's the distinction between question warning question six and to come back to his actual knowledge there's mr tubbs this testimony about how limited his awareness was one particular question an answer for m when when counsel for the defendant asked him tried to pin him down that from day one he knew that benzine could cause harm if you're over exposed to it and what mr thompson was we weren't basically told if we were over exposed that we were just basically told to be careful with this stuff so that also addresses this argument about the these to supposedly conflicting  verdict with respond to the answer to question one by the jury is among other things a moment among other methods of reconciliation is that could be interpreted as what was mr dahlan warned the the risk of excess of exposure to benzene and the hazard of benzene the benzene can cause cancer and the answer to question number six the jury could have about the product liability issue product liability theory the and the conflict that's proposed by the by the appellant is between the general negligence theory and the the premises liability here and for a jury that that has decided perhaps in the first minute of their deliberation that we know who caused the harm we know what the harm was now which one of these theories  about which one fits the very best and how do we interpret question number one in question number six as questions that are asking different things well question number one it's talking about  just about the hazard of exposure to benzene and question number six is talking about where you warned about the exposure that you're going to encounter at this complex not to die i assume the plane  when along with having final instructions nine be different than question six right the plane he went along with it when it did not object to that that's yeah right you just it was made in response to i don't know what it was it was a trap but what about using nine to clarify what six means you follow that argument i'm not clear ok with nine saying is dangerous condition on the premises is the basis of the premises liability it's what nine says no jury instruction but the question says exposure to benzene and when you reconcile the two dozen explosions benzine main dangerous condition on the premises which sounds like hazards from exposure get that one yes yeah ok and that fits for me if i understanding correctly in question number nine is back to question number one and question number six is the question that the jury interpreted i mean if we're going to make the effort to reconcile the verdicts the answer to question number one question number six it doesn't take too much struggling to get to the reconciliation that one is asking where they warned about their hazard  of exposure to benzene generally they work and question number six is where they warned about what you're actually going to encounter at this at this at these sites and the jury said that they weren't adequately warned about that in that sense there's the it's clear enough it's logical enough and it's and it's no longer there's no longer a basis for saying that these are inconsistent verdicts the  e returned judge smith to your question about the actual knowledge of risk there is other testimony in the record mr stoudemire and didn't know how much benzene exposure was necessary to harm the body  wasn't aware about the site having been a superfund site mr sheppard was unaware of how much benzene exposure was necessary to cause harm or cancer looters didn't know what level of benzene exposure occurred  ms jones stated her opinion and lack of knowledge about benzene as a hazard described by employees of the complex showed that efficiency of the defendants education program training program she was talking about the magnitude of the risk based on the fact that he didn't know how much of benzene he was being exposed to at work he knew it was being exposed but there's no evidence that he knew how much he was being exposed in quite the quite the opposite mr tubbs testified he didn't but the idea that it was proved conclusively as a matter of law that dean darwin had the knowledge he needed to know to not require a warning under iowa law is not not sustainable you didn't mention  bacterial data safety data sheets and asked me yes if the and those gave information they and they were they were not distributed to drivers they were posted at employees sites  mr tubbs saw that and mr tubbs didn't get enough information from that to know what the action level was to know what he was being exposed to to know how much exposure there had to be for him to be at risk of getting cancer he just didn't get told what he was walking into he did get told big by a big sign apparently that benzene can cause cancer so be careful but he wasn't being told how much he was walking into  on a day by day basis mr dahlan was making six round trips a day for several years and for the first three of those years the method of getting the the the substance into his tank exposed him the fumes the whole time they eventually came up with a better method of transport so that's that's what the day evidence of knowledge of risk would be that there was there's evidence that they were that they were told benzene causes cancer there's a ton of evidence that the ample evidence that they weren't told exactly or anything about just what how much risk they were facing at this that these premises i want to take my last forty five seconds because this is important also to talk about the the cross appeal v and i'm going to have to rely on what the the district court in gauged in but but waters is there a persistent course of conduct showing reckless disregard for the welfare of others should shown by the evidence in this case and and and there was there it's much the same evidence that i've already talked about thank you gunners thank you counsel either no detects or there were very very small benzene detected there testify about requiring p p for the workers there's a stipulation of this case that there is no evidence that mr dahlan ever failed to wear his respirator these people that is not the complete absence of care that is not actual legal malice in the part of the premises do you agree with the district court's questions the district court distilled a whole bunch of questions from the i what cases you know what i'm questions are fair that's all i'm driving do you think the questions were good i probably need to look at those i think i think are now sometimes very good i'm let me address this whole issue about about question one question since there is no principled way when you read just invite the court read question one part two and then read question six there is no principle way to reconcile those and question six has to be read with a three wood i'm sorry that you agree with well the only difference is that i'm going on and hazards the word gross court appreciates the presence of both counsel for providing argument to the court this morning and the briefing that you submitted will take your case under advisement when your decisions problems possible