athlete present by mr wilder you may proceed counsel mckinney never used old cars welding rods he was a bystander who walked by three arc welders who he claims were using over rides twice a day to take fifteen minute work breaks on the same four that they were working on disputed that the rides did contain a specimen correct that's correct and it isn't disputed that when they arrived i'm no welder so feel free to educate me on the map but when you use them too well my understanding from going over this case is that a portion of it falls off there are pieces that fall off in the welding process and it's alleged that maybe some of them fell through this great or whatever now down so is of a ceramic like thin layer of flux and i flux is constructed by taking a small amount of asbestos which constitutes a small percentage of fifty percent of the dry ingredients and then the other part of the flux temperature and then dry and that forms the ceramic like coding but more than simply that mechanical coating the only evidence in this case is that there is a chemical block which is fo understood dr de pot talked about how they as best as in the flux would be melted by that process so yes so obviously there's going to be no asbestos dust from that correct what about those pieces of rod that are either used or are used completely what happens when those pieces  fall through degrading and i understand it that physically it wasn't as it was contended that these were falling down where he was he in fact was over on the other side crow it went falling down falling down a different  evidence and that evidence constitutes the most important controlling issue in this case although there are many many issues here that's what i intend to spend my time this morning and time won't permit discussion of all of these trial issues and failure proof when any exposure of plaintiff was festivus and that's a threshold legal requirement that those things show hobart offer detailed proof of this chemical bonding and resulting resulting in possibility of never testified plentiful in the trial by calling tim hensley who was the corporate representative hobart to the stand and then plaintiff and asked him about a wide range of topics i respectfully suggest to the court that the best way to gain insight into the unfairness of this trial the erroneous ruling is made on objections to the evidence the pleasure dish will fax of those rulings how this trial went off the proper rails is to read the testimony  read and to have him read in a missile the results of expert tests which plaintiff in no intention of having anybody later testified to this was done under the guise of impeachment of a witness who could not have testif zero seven two and there is a sentence in there that says that is possible that some of his testimony may be regarded as falling within the areas of both play an expert witnesses accordingly should the court find that this those cases plainly say that an expert may be cross about facts that he reviewed in forming his opinions but neither of those conditions it's present here the circuit courts initial air and permitting these tests to be read to the that he did what was routinely done in trials which was to have questions with reports projected on the elmo so that he could discuss them with the witness thereafter still during plaintiff's or during hensley steps would plaintiff moved remission of those records and that was granted by the court noting only that she had overruled the objections to the report before without saying anything else and that too was there the opponent of evidence has the right to defend defense counsel did in his examination was to do what he was doing with all the witnesses which was to show parts of the report up on the elmo as he talked about evidence you know has no functional difference between the player reading it and the defendant e says that we didn't object to that during closing argument we didn't we didn't have to our complaint is first of all that they were ever discussed through hitler and secondly that they were getting the evidence and the fact that they were talked about in  be going back to the jury that's my understanding yes no i didn't say yes or no should must have been true so neither of these two justification for the serious or have any legal support the argument for and so what we apparently have here is a yet another exception to the hearsay rule which is that they put it on the almost so this error has to consequences in the fabric of this case the first is that the because those hearsay reports to not constitute evidence of fiber release omar should be granted and we respectfully request here should be granted they be but at a minimum there should be a new trial because this is a very very serious tr technical training or qualifications other than as a physician plus as a another degree which i haven't written down on all three or something like that but he never tested welding rod she's aware of any epidemiological studies which relate to welders let not he didn't talk about any methodology as to how this was arrived at and that's what we said it should not have been and he didn't say it and it wasn't properly slow which was the the next and certainly that that's not to mean it's a tip but it's a possible interpret you knew of this in the context of what this gentleman said prior work history wise i mean we know he worked you know and i know industry and we know he worked at the syllabi for eight months or so so i'm not so sure that i'm really maybe i shouldn't say following him or green with your position that we had no idea this was coming well i would don't mean that but i mean if if if if the argument here is ok well that's good enough there was a great unfairness of the disparity of treatment in how the trial judge then treated homework because she engaged in this very liberal and expansive dallas and place counsel do not ask any follow up question as to why that was and then the court said well the reasons were disclosed and therefore we're not going to allow you to testify to it so if there's going to be no you know if that she did it for the other side would you still take the position that the liberal interpretation was inappropriate for the and if so i do and i hope i was trying to answer your question which was i think that there is a quality and a difference of the truth here there's a difference in quality of the two disclosures i mean certainly an equally liberal interpretation would have gone a long way towards removing some of the our primary position absolutely if the court can tolerate me and saying that i want to talk about an evidence issue another evidence issue and also to jury instructions very quickly they're  case where there was a string of seven i wish they didn't put in their brief but urgent look at them where it says if you answer question one proceed to question two if you answer question one no your deliberations are complete and goes like that and then it's existed with regard to asbestos fibers at this so if i have to pay you back on that it seems the real issue is whether or not the fibers were released it seven time trial forty seven years of publishing doing research and similar by similar things there are no there's no way that your own welding rods that's been published well the runs one way or the other to retrieve thousand four thousand products not to go directly there isn't anybody says there are clouds of dust we have an opinion from an expert qualified expert that says they will release them when they're rated you will be releasing when you walk on in the crush we have the testimony that just like every other welding place they threw the stubs at the stub bucket and some hit some didn't and some fell down the second floor in shock jock walked by of the walk and some of them self as he walked along the pathway to the break room from it says he has no experience with it he's never done any testing i think he has familiarity with them from prior testimony and from prior question he knows it's not in humans as far as the form persuasive dupont their expert had never done anything with the specialist so he got hired by the welding companies oh wait he testifies about the chemical bond but he's never actually done it he had never done any city didn't need to test and see if in fact the chemical bonnet he said worked would work or if they were thoroughly mixed or not mixed in other words whether it was all together he had never done any of that he just said well your chemistry that's i think sort of unique and magic magical him after hobart was in the case dr frank could already given it up as we had the same general principles not about who bart rods but about the fin it's been earlier case he said you get a copy of the deposition if you want it they clearly got it from someone because they use adams and i told him i'd give you another deposition and the response was why go to nobody's going to say so they took no deposition which i think is a little different than dr upon turning to that and all these charges that judge was  question why you are now i don't think so on the face laws of chicago it's different than when i was practicing thirty years ago and now he's a two thirteen f three witness and he said it was i our areas or went on to pose in defense expert lots of times i'll say dr let me ask you about this because they know it's not in their written the slogan they want to make sure it's disclosed at the time of the trial or by by trial people follow up with other areas  so it's a little different than it used to be and i think the case law supports that you don't have to snuff the duty of the opponent to go into what the bases are really have been but that becomes the duty of the fence counsel to inquire and should not in all fairness make it substantial evidence because he is crossed on a point that wasn't pushed out if you put an argument out right by follow what you said if you ask somebody and they give an opinion on an area like here they're invalid then when the exam is finished at the bell the other side says well you said they're invalid dr tell us why you think they're invalid and then that's out there that bases for th o two inslee was asked about these because he had he was familiar with them but he had been supplied them by counsel trial counsel supplied them by truck ounce or during his years as being the corporate rep so my further mr kelley asked him us and you're familiar with them because counsel has a supply that made it fair game he said to ask him about these things he was from with which were contrary to what he just said about the give off fibers the judge said you not going to you know publishing the jury but there were two ways things were published in this case or hope our it was the elbow or power points for us it was handing out an exhibit and each juror getting their copy to look at follow along which is a once that's how it's done and they're both bind but after the discussion that then i'm going to publish and he sits down and mr schaeffer gets up and he uses pages one five six nine some of the graph spectral gra and is asking about all of this just right up there in the courtroom so many finishes that's where the street deli said well he just published them i want to have a minute so i can publish them and if you look at the examination the recross for mr kelly all he did this follow up in the stuff that whole part of just put up in front of the jury that's all he did that time was put up from the jury and said look at the spectrograph of this lay witness and look at the spectrograph how do they differ in these two substances and the judge said y close to that so i don't know how they can preserve that or i don't he was there but if they were going to preserve it they should have the guts during those so that's how we got to the constant situation read of the search and to publish you don't you don't  seventy's so that's why it was inconsistent they made a tactical decision not to call dr burke i don't not sure why but i think it's because they decided to be better to say well chuck was exposed to brace for forty years and brakes are all c situation they brought in all the other exposures they there's no question as the damages and on frequency regularly proximity they see goes there that her and when my or the support says i'm sorry read any thing containing asbestos which wasn't capable of releasing five s to me yes i'm going to follow up on a place where counsel seemed to put on perspective there was no testing on the rocks at that time or up to that point therefore while troubled by the save it it's like trying to prove a negative that because all products can't be why the statement came out so can you speak to that because i believe that's the reason that the answer was made the way it was made that that wasn't testing therefore they couldn't speak specifically to the testing of the rods but said talks generally about is forty some years of knowledge about material products well i believe that's an accurate reading of the record but still is really the only reason that he's offered for knowing this or might be released or so i think my by reading the record is the same as yours except well not except that it comes down point that when pressed those you know well and how do you know and he is only answer was i've never seen i've never asked to hensley the justification for forcing mr henslee to talk about his reports is that they were well supplied to him by counsel now that doesn't make him an expert it doesn't make him as having expressed expert opinions in this case and is if your attorney shows you something no matter what this that doesn't mean that that becomes then fair game wrong but the two instructions i do want to talk about are first of all the instruction number fifteen hobart's proposed instruction number fifteen which was rejected in