issues that we'd like to argue the two cases on the docket today both concerning the toxic substance beryllium and most especially how and whether under pennsylvania law pennsylvania citizen can be medically monitored for the adverse health effects of exposure to that could i good ice ask you something in or in the beginning about the cause of action here  could you please define when the injury what the injury is and when the injury would occur under pennsylvania law my understanding is that any brillion sensitization is asymptomatic there in your view you've hit the seminal question on its head because the cause of action in each of these cases is a medical monitoring under pennsylvania law which is not a traditional to injury insofar as the successful claimant for medical monitoring hasn't yet been diagnosed with the subject injury but is at a significantly increased risk of developing it so to answer your question as i understand it when one has a diagnosis of chronic brilliant disease c b d that is to say when when you've been told by a physician that you have a demonstrably immune response and some evidence of granuloma on your lung you have the disease but this like other diseases and this is his miss on the statute for cause of action the statute would begin to run it at the end and she had sensitization and she thought she did not have an impairment that would result in a compensable injury now if you're looking at the injury as being the disease then you're out of redland soccer aren't you went into simmons yes and no if i may explain there there is it's very easy with these cases particularly given the late period of these diseases to confuse the cause of action with the injury and if i met because the third circuit has weighed in on this judge becker wrote a very important decision actually out of this community and plant called the beck and  that was a statue of limitations case and the injuries there was c b d itself so the the a traditional pennsylvania analysis resettlement ations of the injury is two years from the date of diagnosis or when you should have no so none of these cases present a request for compensation for an injury each of these cases this one in anthony is a cause of action for monitoring for the likelihood that you're going to get the disease based on what we find is a significantly increased risk so the answer to judge sirica to your question of when the statue of patients begins to run on these claims is it depends on what relief you're seeking if you're seeking high i'm already somewhat confused about the disease have you the term that is it is several times what is the disease i d the disease such that the d s is a precursor to the disease or is b s part of the disease is it part and parcel of c it is part and parcel in this respect the disease make no mistake about it is c v did what science has learned just in the last six or seven years is that what was initially believed to be simply a marker of injury namely beryllium sensitization is in fact the beginning of the progression to full blown c b d and i would submit to you this is an issue that the eleventh circuit looked at with great care not georgia laws different on the subject in pennsylvania the injury is the disease so that before you get your c b d diagnosis you don't have an injury claim what we now know a small percentage of the who have the sensitization are eventually diagnosed as developing c b d is that correct thing correct doug smith and that's one of the most important points of this peel when with experts experts in both your experts in both cases ross the news is the one to three per population has any risk of becoming sensitized it is true that most experts will posit that the general population exposed in the most generic way is exposed to temper center last however that that is not true and occupational setting where documents and evidence that we've produced in both of these cases indicate for example that machinist's are at a risk of contraction of twenty five percent now but that's a risk not a significant risk in terms of the expert testimony in this case let me let me return to judgments question because i think it's an important one your position has suddenly shifted from sensitivity being a but in terms of what we have to decide does it really make a difference because as i understand the record the only way of monitoring and have more of the specific monitoring  as of now it would be the b e l p t who either by blood or lung correct that is correct so does it and you would have the whole exposed population take this test correct know only the part of the population that has demonstrated under redlands that is but at a significant hour with a demonstrated that's the seminal lie how do you demonstrate you would be at but it is incorrect to say as the defendants have been arguing now for years that you shouldn't be monitored for the significant risk the risk of developing c v d how are you monitored other than by the b e l p t that that is the gold standard tool for the medical monitoring other than the answer the question is how else can one diagnosed it resembled sarcoid doses and other idiot idiopathic pulmonary five product disease processes and so there were not very many cases diagnosed throughout the sixty's and seventy's and there was a mistaken belief in the science that they had somehow licked it from an industrial hygiene standpoint with the advent of the l p t and being able to have essentially noninvasive blood study to demonstrate the immune response that the whole science changed dramatically but you have to show that you are at significantly increased risk of developing the disease before you get really in the words you don't you're  monitor or screen one can say to find the people who might have the judge perry fi could answer see your very first question which is you know what am i asking you to rule  asymptomatic no one disputes that she needs to be monitored for the rest of her life to see if she becomes symptomatic let's put aside for the moment whether there's a race judicata effect in the case of zimmerman one of one of the world's most preeminent experts in the field who's just thirty four blocks away said in records that we put into the into this record that you have that this man must be monitored and that's that's the narrow question you have to determine whether judge prouder barrett but here's the question that this these cases is science and jurors jurisprudence butting heads and the question that i'm asking the third circuit to do is to untangle that he is the way i propose on behalf of the palace that you do so number one that you read paul as judge gardner did which is that there is not an immutable rule established in poll mr mr heinecke i i i don't like to interrupt but you just said something that at least to me was important and so i want to make sure i understand by untangle ng are you suggesting that poll does entangle both science and jurisprudence and the sub question to that is if the answer is yes has poll laid down a rule that can only be changed by some subsequent change or development in science it would be brought to the pennsylvania courts and somehow modify or overrule pull but let me answer judge smith the first question which is i read paul and have always read polish judge gardner did as being highly fact specific recall that this was a two thousand and one class action brought from a residence that was never decided on the merits and judge levin court only determined that it was not  but what happened was that a dictator that he offered in his opinion became essentially substance of law or at least the way the defendants are reading it and that is that you can't demonstrate a significantly increased risk for redl purposes unless you have a papa you have a brilliant sensitization diagnosis i have never read paul that way and judge gardner agreed with us leaving open the question and frankly the requirement under rule fifty six that each case be looked at on its own facts and scientific merit and so that's the question i think presented in each of these appeals what is the record that we've established in sheridan and zimmerman and then separately in anthony that makes it look different in poll because there's a great frankly seduction for jurists to look at paul and say well it involves grieving beryllium the science is more or less the same we're simply going to apply paul and that's what happened here  yes or at least that there's a significant risk that it could be and your experts say quite the contrary don't they know judge perry in fact the experts are uniform in the record we've amassed here in saying that significant risk attaches before sensitization is detected and the reason they can say that here where they were unable to say that in paul is twofold number one we have the first launched today will study that was published in zero four that says without contradiction and in the literature that the vast majority if not one hundred percent of brilliant sensitized persons will go on to develop disease at some point in this big latency period that is hugely important recognized by the eleventh circuit because what it means is that brilliant sensitization is no longer just a marker it is the beginning of a disease progression and so you can't turn medicine on its head and begin to test someone after they are already have the beginning of the disease process so we have two sets of experts saying one on the medical side that you must you must monitor with the l p t before sensitization is detected because like h i v your cholesterol you don't start to take someone's cholesterol after they've had a heart attack so you're happier as monitor the whole exposed population which is which is what whole thing is you don't do so it's barry read what happened and paul that was a six mile residential class and quite honestly this perk or pennsylvania was offended at the idea and i  it's really one person that's the question before this court and that is because we never got to the class why this is the question for zimmerman this is so crucial to our p o is did mr zimmerman present evidence from physicians that were competent that established he himself was at a significant risk i remember zimmerman had a pop one positive lp to read it and to you do need to but no less a physician than dr ross minute penn sa more monitored for the rest of his life well judge baird respectfully the the record is abundantly clear there was a statement we it was so important to us that we excerpted it in our brief from dr rossman who said that mr zimmerman must undergo a life time of monitoring to determine if his condition will turn into c b this so that that that doesn't almost answer the question here he has not shown that he is at a were said to have run in fact hadn't run because they had an exposure duration latency of forty years mr beck the third circuit had a case which it decided which judge becker the single defense expert not insured and as i offered none but in the anthony case you hear about he agrees that everybody needs to be monitored once exposed over a life time it's not an accident that osha requires what paul said is not does not meet the test now judge perry respectfully what i think poll stands for is a failure of expert proof in one case in which we did not have someone like dr adam finkel who was the seat who is the senior who was a senior most osha officer in charge of risk assessment we now have a risk assessment that we put into this record in which it's been determined one in five hundred members of this community will actually develop full blown c v did well i think think will said that based on other studies he won discoveries so that he could decide what was the the risk as to this population i done it while he had in fact judge perry he did it in the case of sheridan and the residential community i concede that he did not do it in anthony which we'll talk about a minute that's the occupy the occupational setting and the reason was that we had no discovery on exposure data and ironically even though in that case preceding the card you meant there there was a single legal argument those poll apply or not we were for close from getting any kind of exposure data by contrast we have a ton of exposure data in the reading community and dr finkel actually perform q r a which is what he did for years with osha and and the point that i was trying to make judge perry is that this you know i'm  unabashed about good lawyers good point of sloyd trying to push the envelope on what's good social policy but i'm here to tell you i'm not doing that the reason i say that to you with all due respect is that what i'm talking about doing for this community osha does for workers the deal we has done for decades for its workers industry has done for its workers we're not pushing something that is an exotic breed the narrow question i think this cour has to determine is what the polls mean and then applying that to to the specific facts of this case how did the whether or not these cases came out correctly i think paul means what judge gardner said it means that you have to have a significant increase risk the monster ball in whatever way the facts and expert opinions of the specific case and the demonstration let me ask you if if we get beyond zimmerman and we look at a class of everyone who lives within one mile of the plant how does a medical monitoring situation where in your view circumstances who's eligible everyone who every resident within that  s we have proofs chief judge that everyone within the one model radius who live there during the race is at a significantly increased risk for way ahead of how that's that's correct for a fifty year period right now that seems that seems large and that seems potentially unmanageable but that's not a question before this court and in fact there have been classes certified  not on monitoring issues but on others it presented much more complex management issues and respectfully i think the narrow question presented with this residential communities request for monitoring is really boils down to whether or not it's one class representative mr zimmerman through his experts present presented sufficient questions of fact in science that should have precluded the grant the number of let me just  ask one more question what is the test that would be done to the all the residents within this one mile radius the test that would be offered would simply be the l p t and then depending upon the result of their l p t there would be an algorithm no one no one doubts or denies that the algorithm for testing for adverse growing health effects starts with an lp t and if you have two positives you then have to have clinical evaluation and that's the the algorithm that we suggest would need to be applied to properly monitor this community not to first see whether there is risk because the risk is already established and zimmerman has had one indicia of disease beginning to arise and that's why in his case dr austin was someone phatic that he needed to be monitored he's the class rep that we chose and that is when the record closed in this case he hadn't been back to be monitored what he wasn't he wasn't asked to go back yet when the record closed he had been asked by dr austin to come back i forget now if it was an eighteen or twenty four month period so you're quite right the record did close he hadn't yet gone back but he was scheduled to do so but the record is clear mind you there are no experts on the defense side in the church in that so so they're relying upon their interpretation of poll that absent brilliant sensitization you can't get monitoring in pennsylvania and i submit that the case can and should be decided narrowly meaning was the district court correct in determining that the opinions the new opinions of the risk analysis from dr the analysis from dr rossman in which zimmerman was specifically found to require monitoring should that be ignored in the face of a granite like view of poll that says absent to posit l p t's you can't get monitoring that's the opined as they plan a sex for its did here that everyone exposed to beryllium at levels above background were at a significantly increased risk of contracting c b d and should be medically monitored for the rest of their was necessary to establish the increased risk significantly increased risk of contracting c b d because of the following immutable facts about really in science and medicine which were true at the time of paul and really in the whole of the ct knowledge that there was evidence that as much as thirty five to forty percent of the population may be susceptible sex is ation is a precursor to c b d and all even if that were true it's irrelevant because the article would itself reinforce the requirement that sensitization is a precursor that is a precondition to the seas and reinforce reinforce the whole requirement but a precursor for the or the beginning of the disease i don't think you mean she does it all whichever it is we would do the monitoring with the same test i believe that's true and i mean ideally i mean in the ideal world you want to find out who's going to if there's some way to determine earlier than than the blood test or the long test that someone is so susceptible to becoming sensitized or what i would have of the correct whatever the correct lingo is that would be nice that would be the ideal but there isn't any evidence that in advance of the blood and or one test one can determine that correct i believe that's so true i'm trying to understand why it makes a difference whether we call a b e s a precursor or the first step i don't think it makes a difference at all i think in either event are you must be sensitized to order to demonstrate the significantly increased risk that's what poll says it's well you know i'm not so sure poll didn't poll wasn't was decided as a matter of fact as a matter  affectively undisputed fact or failure to submit evidence is there is some error in there i think for your friends across the aisle oh i agree with the side as a matter of fact and i agree i believe that's what both judge evidence submitted here has no material material differences from the evidence that was submitted in paul in the absence of a material difference we apply paul the court apply poll as a matter of law and that's your argument i think that's what a judge so darn good as well proud or didn't it doesn't really make a difference for our purposes whether whether it is decided as a matter of positive law or are as a matter patter prouder that it was a it was a positive proof it was it's a positive rule of law based upon the evidence submitted which as we say is immutable and the same and i think that's what judge gardner did i think you approach it a little differently judge gardner i think approached it before look at paul let me look at the facts and the facts are these and he identified the four facts that i say have immutable he then took those four facts and say those are the different fact in this case is that everyone who was sensitized progresses to see video again i don't think that's a material change in fact if it were true but it's not true the truth is it and glazer says this in his affidavit greater than fifty percent while the poll quarter knowledge that fifty percent will progress and again if you look at the article on the article does not show that everyone progresses the article shows that between six and eight percent progress within the first six years the conclusion is rates of progression beyond six years are too unstable to it's the practical effect of no and in a case like this where you have genetic markers and susceptibility that that there really is no way of him medically you over this issue and that's what paul says but what i think the plaintiffs are trying to do is what you are judged are referred to what we refer to a screening what they're trying to do is we say we know there's a population that's been exposed to b and we know that exposed populations will have a greater incidence of disease and unexposed population so let's screen that population to identify those among the exposed population who in fact  have this significantly increased increased risk who are beryllium sensitised and while the issue before this court is a single plaintiff mr zimmerman the implication is far broader because the implication of allowing judgment he has evidence of beryllium sensitization and would survive this motion there are again other elements of the cause of action that we would challenge but the pole court acknowledge that and the one future time based on scientific change submit evidence that there is a significant risk of contracting c b d in the absence of b e s you would agree would you not that paul would permit really well if there is sufficient credible science i mean it's experts  there is evidence in science that you need this precursor or that it's a sets of eyes or allergic type response but even in that case the supreme court wasn't in a dust induced case which dr glaser distinguishes from an allergic or immune response type case with really a supreme court of pennsylvania sad that we're not case she has no personal injury cause of action and of course our argument is that she's precluded from bringing the medical monitoring claim after her personal injury the anthony case and this sheridan dismissed her case against us because we did not operate the plant when she lived in the area so i'm here only talking about zimmerman and i think in terms of we've been litigating these cases for ten years now we've had these arguments before and i think it's always important and it kind of gets lost in all these esoteric questions of the medicine in the science and i think it's always important to remind all of us that we're talking about the redland soccer case that's the law and sylvain it is an unusual course of action not all the states recognize medical monitoring as mr hornik says you're giving a cause of action to somebody who's not even injured it's a balancing test obviously and so in doing that the pennsylvania supreme court set forth seven requirements that have to be met and they apply in strictly and that's what the judges in poll have done and that's what the judges in this court have done in the lower court the district court the one we're concerned about of course is that the plaintiff must prove as a proximate result of the exposure plaintiff has a significantly increased risk of contracting his seriously disease it's important to note that the case in and redolent said plaintiff must prove that plaintiff has a significantly increased risk not the population of which plaintiff is a part has a significantly increased risk not that some generic population in the reading community over fifty years has a significantly increased risk but that this plaintiff mr zimmerman as a significantly increased risk of contracting is seriously in disease and the proof of in the simmons versus perry case this is an unusual type of disease it's an allergic reaction if i'm not allergic to beryllium i can stand there and be exposed to brilliant for fifty years and according to the science now i'm not going to get c b d that's why i talking about the population as a whole saying you want to monitor the population based only on exposure does not apply here and should not apply here because we're talking about a disease that has a genetic and an allergic component and so a plaintiff has to prove that he falls within that subset of people who may go on to contract c b d if he's exposed plaintiffs all along from the beginning of this litigation through to now have been pushing trying to get this this acceptance that exposure equals significantly increased risk and yet the science is in there and judge crowder looked at that closely she looked at that argument and said no we can't except that judge gardner in the anthony case said the same thing judge levin in the state court case in the two polled one in two said the same thing well the courts have looked and a specific case redland soccer and what you have to prove to get to medical monitoring in pennsylvania and plaintiff simply can't prove it here now as judge perry and asked before perhaps if the law or the science changes and there's some other way to determine whether somebody is it significantly an individual is it a significantly increased risk besides a b p t will be back here with a different case but that's not where we are now that's not with the sciences and you know whether you go at it i think i agree i don't think there's much of a difference between what you have gardner and judge prodder did they both essentially conducted factual inquiries and came to the same conclusion and i think that's really what you have to keep in mind the strict requirements of redland soccer that's the law of pennsylvania the supreme court of pennsylvania denied our creator ellicott or twice in an poll they had an opportunity to address this case not in some related matter or not in some sort of similar case that might have provided guidance the supreme court of pennsylvania had an opportunity to address really him disease c b d sensitization and redlands soccer twice and they declined and worse we're left then with the superior court case setting that the law of pennsylvania and that's what judge gardner and judge pratt are have applied appropriately we have the certification procedure here in federal court where we can certif supreme court what's your opinion on that i don't think there's any need to i think the pennsylvania courts have spoken and as i say that the as much as plaintiffs of trying to change what the law should be the law is clear and the science in fact have not changed in the last ten years to make the law any different and and the you know these mr hona kind of makes it sound like well back in the days of polls that were years ago well poll to the trial court decided in two thousand and six it was affirmed by the superior court and to thank heaven and alec out it was right in two thousand and eight i mean you know maybe because i'm old or whatever but that's not that long ago in may this is recent history recent law recent a judge products decision should be upheld because she was simply applying a long line of cases both from this court from the federal courts and the state courts that section three twenty four a restatement second of torts does not apply in this case and should not be applied in this case to impose a duty upon spot stevens to the plaintiffs and in a larger sense to the class that the plaintiffs report to represent spot stevens according to the complaint the amended complaint was engaged to provide to conduct air sampling stackhouse thing at the plant spots the evens never operated the plant or own plant and there's no allegation that the stack testing or sampling was conducted negligently in fact the plant just rely on the results of the stack sampling in and bringing their case against the defendants the theory that the plaintiffs wish this court to accept is that by conducting the sampling correctly and competently and by reporting the results a competent manner that somehow a duty to the plaintiffs to the people who lived outside the plant was created something of a duty to advise or warn the community about the results of th hundred two that in order for section three twenty four a to apply the defendant must have specifically undertaken the task that it is accused of being a performing negligently there is no allegation the made the complaint that spot stevenson mccoy ever agreed to one the community or to take any steps to protect the community the complaint simply a be suggesting that although the original undertaking under section three twenty four a was the conducting of the stack testing in the air sample that because the results were not one would have wanted that somehow i second duty arose to the greater community in that spot stephen somehow should have been warning the community about the results of the past but there is no us legal authority for that opinion and there's no legal authority for that view that somehow because the results of the tests were less than desirable that a duty for spot stevens to do more than competently passed and report the results somehow was create of the idea that when someone contracts to do something that person can be held liable if he does it negligently there's nothing radical about that notion that the far a ball decision  does not change the result of judge prior to the sit in this case in any way inferrable all the it was a construction case and the question with the liability of a construction manager for the death of a employee of the general contractor on the site but importantly in that case the construction manager was paid to assume an active role in assuring the safety of the work site so that was in the contract that was an undertaking of the construction manager in that case that is simply different than the case before this court were spot stevens a macor never undertook to protect the larger community was not in its contract and it never let me thank you again for the for the luxury of this attention and i'm going to try to be brief because there's is really quite a bit of overlap here and this was actually very instructive for me to hear some of these arguments frankly to sharpen my own argument zero eight that somehow there was included in that petition consideration changes in the medicine and respectfully that's not so you know paul has two life spans it's there's  the record for poll one was concluded in two thousand and three that's when denial of class certification occurred in the trial court that record that is the experts the depositions everything on file never changed never change poll to was the remnants of the denial of classification with the three remaining individuals and their cases individually were denied on summary judgment again the record never changed and why is this significant and why do i bring it up in the first instance to to discuss with you not only the occupational case of anthony but to touch back upon the residential or environmental case of sharing the reason is that i don't think the third circuit's jur prudence should ever venture into deciding science what i would ask you to do with the help of your clerks is to go back and ask this question did the plaintiffs in each of these cases present scientific evidence that looked materially different than the record that was created in poll if the answer to that is an honest yes i would ask you on behalf of each of these proposed classes of plaintiffs for whom their merits decision remains quite a ways down the road that you give them an opportunity both to conduct discovery and to demonstrate to a fact finder not an appellate body that what their experts say  it is stunning to me that in the zimmerman and sheridan cases that there's not a single expert from the defense saying that risk doesn't attach until sensitization a curse and judge as i listen to you i wrote down you asked that extremely important question what difference as make if the l p t is the tool what difference does it make whether it's before or after but that's the entire question here when  give the l p t when you get the you give it after your h i b you give it after your you have a positive blood pregnancy test you give it after you have arthrosclerosis our experts say i still don't understand our experts say you're going to give it so what difference that would be your monitoring tools the wedge give our employees if they want want the defendants to pay for a study a test that they're not going to get on their own and that they're never going to know about unless we send out a class notice the experts in this case as recently as two years ago the world's leading brilliant health experts said there will be over two hundred cases of c conservatively within one mile of this plant if we test those cases are there the question is will you permit it to go and the answer is yes because under redlands our experts have demonstrated that there is a significant risk to zimmerman specifically as mr dealer renzo ask is that is the question but quite candidly for this community the science has changed there is now in the journal of peer reviewed article there will be two hundred cases of c b d if we find them if you allow us to look for them now that's what we're asking to do in redlands that's precisely what the supreme court of pennsylvania zimmerman we've already established that sheridan clearly has to be monitored so the question is did we do so in zimmerman that's the question faced by you and i submit to you and i ask you with all due respect what more must  plaintiff do than to have the world's leading expert at penn say this man has to be monitored he is at a significantly increased risk that's different than you and you and me and everybody in this room because he lived one mile from the plant his whole life what more must we do that declaration from dr ross and the declaration from dr thinkable the osha expert who quantified the risk mathematically which fast says we don't have to do but we did anyway what more must we do jurist prudentially to get a day in court and place that evidence in front of a jury the error that we assign with respect to the court below is that they looked mechanically at pole and said in the absence of two positive l p t s mr hornik we're just not going to look at it that's why the montra that's what it is it's a montra from mr witness saying there are three  truths they want and an opinion from the third circuit that says there are three immutable truths that haven't changed over time therefore poll applies and although judge gardner theoretically is correct that there could be a case well that's wrong we have presented that case and the reason i say that is because both in the case of the occupational setting with the plant with our expert opinion and judge and dr redshirt disagreeing you have a material question of fact between two competing experts the eleventh circuit said we're not going to get involved that's what i'm asking the third circuit to do is to say i'm not going to determine where on the continuum of risk the risk attaches that's for the experts where that where the experts all agree that it's here we can make a judgment isn't the ultimate question for us whether we are convinced by persuasive data that the supreme court of pennsylvania would not follow poll nothing to make question for i don't think it is with all due respect judge perry i think that that this court is empowered to do exactly as judge gardner did and that our pellet courts do all the time in reading decisions narrow if you read poll narrowly what it stands for and the language is clear it says you can demonstrate significant risk by being brilliant sensitised or some other significant risk what we've done in these two cases here is to is to use the or is to say to you this science was not that clear in zero three where the risk attaches on this continuum i agree that our experts in poll did not adequately address the risk what they did to be candid with you the pennsylvania department of health found thirty nine cases six miles within a six mile radius of the plant and we frankly i thought as a as a plaintiff's lawyer that's enough i got the best experts in the world i got the pennsylvania department of health saying are thirty nine cases that is a significant risk well i miscalculated so what we did was to reload and we paid great heed to redlands and i came in here with the with the best q r a risk assess in the country i came in here with the best industrial hi janice and the best medical experts in brilliant and they all lined up judge perry and said these individuals need to be monitored and so does the class and the question is  you except that science or are you going to cling to an interpretation of poll that says only two poses are you really saying we can apply home and find that what you presented is the persuasive evidence yes if i mean i would right after this whole is still vital it's an attempt by that appellate court state appellate court to determine where significant risk attaches in the context of really an exposure and what what the plaintiffs in these two cases have now done whether they could persuade a jury is it separate question but what they've now done is to at least put into the record the idea that risk can attach and does attach before sensitization is found that's what hone it has proved or at least put into question and in the absence frankly of experts on their side saying i'm full of it i think you're duty bound as a matter of jurisprudence frankly to say we're not going to venture into this science we're simply going to recognize that some experts are now saying in ways that we can read from m that while applying whole as he goes to rejecting it absolutely i don't think poll needs to be rejected and to pick up on a point chief judge sirica we did say in poland over three m exposure is enough we don't say that anymore the reason we put six miles down to one mile is because the data and it's all in our reports of the amount of beryllium in the one mile radius versus the six mile radius is hugely larger so what our experts are now saying is not near exposure they're saying massive exposure within one mile produces a significant risk so we tried to cover it from the industrial hygiene from the exposure data and from the medicine and our cases respectfully and all we're asking this court to do but you still have you still have you have enormous amount of scientific literature that you have massive amounts of exposure and if you're not sensitized you're not going to get the disease that's now and then you have people who have not been exposed for very this shared lived in wherever she lived for five in the you know in the forty's or fifty's in five years and and she she sensitized so you still have the bottom line figure there are not going to be a lot of people who who will be who might become sensitized we have we haven't reviewed study that says out of the theoretical twenty one hundred people that's this is what the study says it's in are it's in the record out of twenty one hundred people two hundred ten will develop full blown c b d that is a public health disaster that's what our people talk about so in the grand scheme of things we can sit back and look at the numbers and say in relation to this large population one percent three percent to ten percent doesn't look like much but it means a heck of a lot to the people who lose mothers and fathers and daughters and children to this disease ten percent is madness we still do you know who  specific you're correct that you're correct we all know people who smoke cigarettes you know who don't get lung cancer and don't die of heart disease but that doesn't prevent the public health community from saying don't smoke it's one of the worst things you can do there's no guarantee you will have lung cancer and i mean let me let me see if my colleagues have any more questions yes thank you but have you back on the next case well i think i'm here on the next and i've been talking about really i'm health generally but i'll very much overlapping as significant as we think the risk is demonstrably attached to residential and environmental exposure we think it's exponentially clearer still in the occupational setting and what we have in the us gauge plant is not some enormous population but a very well defined worker population in which both the science and industrial hygiene has decades of experience of understanding and quantifying risk what we produced in that case not dissimilar in general to the expert evidence in the residential sheridan zimmerman case was very powerful proof that the machine is having us age point having worked for years without any type of environmental controls or work controls are at a significantly increased risk of contracting is that they have never been tested and that they should be we used as a paradigm for our discussion and expert proofs the programs that exist in other work or communities and most especially brush wellman which have has been brought in as an additional defendant not by us but by one of the defendants there years have been doing exactly what we're seeking to have on behalf of the worker class at us gauge and that is a robust monitoring program in order to have a look for disease in that community we know from the evidence that we've amassed that machinists who work with beryllium contract that disease at rates of twenty five percent and up and in fact some of the documentary evidence that we've amassed in this case shows that there's much one percent of this were population is at risk for contracting civvy did now what is the specific error that we assign to the proceeding anthony i'm soon to conclude i fully expect mr uber saxes stand up after me and address the brush woman position that i have you moved so effortlessly effortlessly and to anthony that i thought it would be he may wish to take advantage of the table and write down a few things have a drink of water