court had given and other parts of the instructions on the thirty series of the i p i dealing with such things as loss of normal life pain and suffering and of course medical expenses which would include both if you marry loss and not hearing loss yelm of the damages you think what was discussed is that it was a difficult situation to put all of the elements in there and the evidence order i don't know that anything is conceded because frankly rather pain and suffering is an element of wrongful death as is loss of normal life w parties or so i don't believe the defendant has failed to properly temporary correct for the it's our position of the statutory language makes it mandatory that the word shall is contained within the very language of there was a lot different defendants multiple defendants multiple counts of murder forms tendered didn't go anywhere near covering all the different theories and all the different parties in the case we have put we put to the judge in this case to the trial court and our that instruction should have been given in our view without that we have no way to address whether i was european out in terms of medical expenses and so we have no way to attack the sufficiency of peel that's one of the things that henderson reaction together have the railroad go out sensually acquire another tenant to put in that building to keep the job flow coming and of course that tenant turned out to be a narco in this case evidence was introduced to try out it's our contention that it was irrelevant and extremely prejudicial that the railroad was in fact the lease on the landlord of that facility that billing and testimony several documents were admitted and testimony went on through corporate provide a reason we safe place to work that's absolutely correct and i think the point of can argue and did argue as much as they care to that the railroad should have taken steps for this dust blowing over from the norco into the that the railroad should have used the tube respirator program cleanup the premises better taking whatever steps necessary but the problem with the lease is again it creates the the inference in the mind of the jury we don't know but i think it's a ta vs situation the impact of the agreement in this case they were the owner of the building was the was the facts given to the jury one other issue going back to instructions i court well aware that giving instruction aggravation is inappropriate when there is no evidence to support such an obstruction in the record it's our position that there wasn't any evidence in this case mind the court this gentleman was suffering from and lung cancer which he claimed was caused by i specified he also had other medical conditions leading the form of leukemia hypertension and prostate cancer none of those were of course aggravated anyway by  fleet case which was in our brief from one thousand nine hundred four when the court said look there is no evidence that there was an aggravation or there was no evidence that the defendant's conduct or negligence did anything to worsen it condition and such an instruction shouldn't be given the argument you hear from abilene this matter is that small man was also a smoker and he started smoking about the time or maybe a year or two before he joined the air and i'm not going to get into a discussion of synergy but there is medical literature to support those two substances together in sufficient quantities can result in cancer but i'd submit to this court that smoking is not a preexisting medical condition smoking is a health that smoking that that standard comes right from the how much to the obstruction when sixty point two seven there was simply no evidence in this case that smoking was aggravated that it was a medical condition at its best an inhalation would have aggravated that condition and you go back to the itemize or the lack thereof in this case it's difficult to direct demonstrate exactly what or aggravation may have done in this case we don't aggravation certainly part of loss of normal life we don't have any particular way to assess what role aggravation played in this case but it's a structure that simply should not have been given there is an argument after least brief as to waiver on this issue we believe our post from ocean stated in a very succinct and thorough fashion trial court and then up to this court of course that we were claiming erin giving instruction twenty one the aggravation instruction for the reason that there was no evidence of any injury or damage resulting from an aggravation of grief and do you think that is a very is not a strict liability laws clearly the same elements of negligence and which is causation have to be proved and it's our position that there was simply in insufficient amount of testimony as to the dose  contract asbestosis and then lung cancer the extent it may have been linked it was not pursued there was no evidence to the jury of dose how much he was exposed to no attempt by an expert or any other witness to quantify it in fact defense experts in fact there worse and thus counts later in his career his latter years in the eighty's which of compliance with the standards that were in place at that time no evidence to the contrary that the witness came into the court when experts ham pointed at the river not provide a reason it was not quantified the court looked at it and said look there's no liability for exposure to a dust there's no evidence that what this dust cloud actually contain it may have had some saw but there was no specific evidence as to how much of course gives us the lessened standard of proximate cause and whole heart and i do understand and i think i think the rogers case from virginia did a pretty good job of distinguishing that case causation has to be it can be can be given at a much lower level but it is our position that you have to have some testimony to establish the sufficient dose to the particular agent so if it's best whatever it might be such that a proper jury verdict here in view of all warded such that it could be determined that the plaintiff was exposed to an unsafe love the jury could actually make that inference yes proximate causes less if the jury can look at it and i agree that rogers makes a standard low road use in the sprinkler it does but i think roger's from virginia allows that railroad puts a burden on the plaintiff to at least the stablish some threshold of exposure it's difficult to quantify services think three different ways and also is industry health sobriety and thrift and that's the damages returned along with death plaintiff we tendered one there was a difference in terms of one paragraph judge lawrence made a ruling and i gave an eighteen a that took out one paragraph and i was ten or so the jury had instruction about returning damages for wrongful death we tendered my use instruction twenty six one about life expectancy if you find that there was wrongful death the nurse or with no objection on the road if you find you know injuries for wrongful death you may consider how long jake will live you know no and consider how long the survivors were sustained damages so there were wrongful death throughout the and there is no proper itemized verdict form here but you know it was just in a general one and a row for whatever reason i think i know the reason which is the start of the case they were trying to claim there wasn't evidence of money benefits services goods that jake would have contributed but as we went through the case i mean he drove jane his wife everywhere he did all the work of the house they lived on his bench and so on and they had a son who had never been able to work every got out of the military  so there was clearly things that fit within the below and that's why i think they were objecting to our strict instructions but i don't know if they bought their own preserve error by refusing to submit on wrongful death they don't bring it up on appeal but at any rate it wasn't tendered and if you don't tender and it's not just wheeler merrick's as the same thing but that wheelers from this district if you don't if you've built a tender a proper i my verdict the trial court and you weigh review and that's what we've said occurred here verdict now on the lease most of question on that on the lease issue we didn't go over the line judge lawrence said i'm going to let it in for notice and knowledge but you're not going to suggest responsibility and as m know they they have the right to do what they want to factor and that was what we told throughout the case no one was suggesting there was some landlord obligation he said well i think it's shown here a j the plaintiff's brief where they use the word  hundred thirty s to permeate and flow freely through its yards and shops without offering any warning or protective devices to workers in other words that's why the lease comes in to show notice in our theory was that they knew what was over and put up you know said stop that but since they knew it was harmful and knew it was coming they could have at least given the workers respirators they could have attempted some sort of i guess ventilation into the the lease it's actually exhibits was very least one of them one fifty three ah it's a transcript appearing from the summer eleven one nine hundred fifty and the way it worked was the railroad yard started in bloomington because of woman who can basically donated some land with the understanding in the yards we continue to employ people there is important situation we get to post world war two the g m a no says we don't need as many people working bloomington but before we can lea new mid thirty's or people travel admitted based on the documents they knew by thirty five that specifies how well that the guy who testified bodie says they've done a detailed inquiry into the operations of the road he was asked by mr building but if i'm being exposed to something that might work to her he's he's being exposed to something and you know i know he doesn't know it then even if it's because it's coming through the windows from whatever is over there the only secretary of police state police  building you'd have under feel a requirement to i suggest inform him and give him some protection you may not be able to stop that building from doing what it's doing but when you know it's coming into your workplace i use the example i think a trial an example but a blob is coming down the hill it's no excuse to say and the in the workers can't see it's law but it's no excuse to say well we didn't read the law we can't troll it you know so that's why the lease was relevant and there's no suggestion that we stepped over  what the court said we should in terms of discussing it eg revision to me this is the classic case for a groove ation everybody agreed there synergism between smoking and the cigarettes that if you're a smoker it's eleven ten eleven times higher for lung cancer if you're not supposed to stress this if it's a specificity five times you're not a smoker put them together is fifty three and ninety two and jake was smoking i think we ended up the term he was things as he went along he continued to be exposed exposed not just in that these but the sixty's and seventy's back of some some suggestion even into the early eighty's so and that increases risk of getting the very disease that issue and there's there are experts our experts all agree that there is an act aggravation the one aggravates the other that's in a synergism that's the definition  talk more about smoking which was still up in the air that's nine hundred fifty eight is a good one sixty six jake has been exposing continue to be exposed for pretty much twenty more years and was never will never worn so yes they clearly have the knowledge i don't side the testimony is there is no safe level in terms of a carcinogen we had testimony from dr hauser who salmon jake during his lifetime and who will pine it was a combination of cigarettes and the q and the  are there nobody really knows how little it can take the same way there's no if there is no safe level for cancer now that's that's our experts there's exhibits exhibit four thirty eight page two from the e p a says every exposure increases the risk comes only one cancer exhibit one sixteen people were question about the fact that osha said there is no level clinical level below no level below which clinical symptoms can appear there was testimony every managers recommended in one nine hundred thirty seven you have to do frequent analysis of the year to determine what amount you've been exposed to the i c did its first dust count aids there's no evidence  this court has never required i'm not aware of any only work requiring they have to have a numerical value on the dose the supreme court  case of the dust becomes part of what's in the plan back there was a guy who worked in the building nobody's tried to quantify what the oath was nobody wanted but it goes in any of the cases brought to you eric lee he said it's been what is the history the evidence or whether there is exposure here we've got coworkers he said he was exposed j gave a deposition before his death gave a deposition and that was supplied to the insects for it's the defense experts say presum presume he was exposed based on what he said that's one of them is a model a m a t oh i asked hauser a hypothetical if hauser had gotten information from jake because he saw the jake while he was alive about where he'd been exposed in i think i've covered all four of them i said one more question we don't know how much the jury awarded for the wrongful death we don't or any other element actually you look we hardly ever we r and then they say they submitted a form which i soon for some tactical reason they decided they didn't want that wrongful death then there was in the rest of the instructions there was no blank were jury to put down one dollar or all of that that's why i objected and they never came back when the next morning we showed up with one and they stuck their position although not appealing this is not civil conspiracy this is not some exotic theory this is an eighty nine million dollars it's a run of the mill the like case it's a reasonable amount of dreaming it jake about in the first place example of the building next door the secretary of state police if you folks knew that doesn't belong over army an individual this for us you might have a duty under a feeling that's probably right but if there's no evidence that you folks are also the owner of that building and had any type of control over that allowing it in i didn't hear anything in the argument that that shows us why the lease was necessary the fact that the railroad was involved in this what was going on there is nothing incorrect or illegal about what you know who is doing simply wasn't any reason but in that lease on that issue they could talk about anything else and the doesn't want over the testimony from the gentleman about it's hard being covered with dust testimony about night and day and for all three it's a weekly two different sides of the coin in terms of the amount of prejudice the defendant suffered out two other things i want to point out again on the aggravation issue again we don't have any evidence of an