support counsel good morning your honor is my name is jack davis or represent plaintiffs in this case at one point or another past forty years or so the plaintiffs were employees  process is the use of salts liquid chemicals that contain organic compound whole benzene that's what this case is about and for about past one hundred years maybe a little less scientific the medical  the manufacturing community including the tire building community have know that exposure of normal exposure in elation exposure to benzene causes cancer specifically cancer the blood in the blood forming concealment battery and intentional misrepresentation against the defendant firestone these torts were pled outside of the worker's compensation act in the issue before your honor's the date is simply whether or not the briefly mention as the defendants have raised in their brief the propriety of the public jurisdiction in this case and i think in order to do that a discussion of the brief discussion procedural history of the case may be  thousand and eight by the trout work with predators over the course of that nearly two years almost a year and a half or more discovery was ongoing in this case in fact the court allowed the parties to conduct discovery depositions were allegations that we put against the defendants to support counts one zoo and three intentional tort claims and i say that to come back full circle clear a bit later to show that we have met the pleading burden under section felt and on october sixteenth two thousand and nine the plaintiff's motion to voluntarily dismiss the action as against the supplier defendants was presented and without objection  voluntary this missile and even a refiling during the pendency of the appeal to the first district scuse me to the supreme court in the divine case in the language of divine i'm it's pretty clear your honors that a voluntary dismissal is like any other other final judgment and when it's taken following a final judgment in this case it was a dismissal of some counter claims in the lower four it operates the same way as any other final because it's an entirely new action it is not a continuation of the same action so in a word or honors our position is that the appellate jurisdiction in this case is proper because at the end of the day the rule three zero for a language or the wrong with the occupational disease act which for the purposes of the deal i think the parties will treat as you read in tandem one of four things can happen or more number one either the injury didn't arise out of the point number two it was in the course of the employment number three it was non compensable under the worker's compensation act or germane to this appeal your honour's is that the injury was not accidental so we focus on that last why in this case wasn't the injury or were the injuries suffered by these thirteen players i either or traction blood cancers them foma whatever the particular disease is accidental and why do these specifically paragraphs eighty three one hundred twenty of that complaint set forth two prongs a very detailed factual recitation of what firestone knew about the hazards of employment but more importantly what they failed to do with that knowledge intentional and that's the second problem that was firestone's intent in this regard paragraphs eighty three one hundred  twenty of the complaint tell a story and they tell a story that began well before nine hundred sixty three the date of the earliest opening of one of the manufacturing plants involved in this case  players were both cater and one plaintiff worked in the bloomington plant a majority time for all intents and purposes we're talking about the old firestone manufacturing facility it's located on twenty second street in defeat and that story they would have the plaintiffs go well beyond any established stand whether it be substantial certainty whether the specific intent whether it be any standard that the plaintiffs would know standard is good enough for a statement or some a quote from the hanley case i do believe is that the court should not accept an invitation to shield an employer where the specific facts have been alleged that that employer acted with specific intent from why villainy outside the workers compensation act and ship that liability to an innocent employer or a fund that is were by innocent players i e the workers compensation system here in the state of exception to exclusivity and you have to bring these claims as a worker's compensation claim this case was dismissed at a two six one five level pleadings this was not a summary judgment proceed and all along i think it became lost on perhaps everyone involved at the lower court proceedings i'm talking about both sides because we had discovered it written ducting we had so much factual development throughout the course of the case that it almost became a catch twenty two for the plaintiffs because the more and more that we emitted by and the narrow and the more narrowly we tailored the specific intent allegations more were against and the more we believe in with all due respect the trial court treated a summary judgment proceeding which at some point your honour's with a straight face i can't tell you that at some point at the summary judgment level we may not overcome summary judgment because the court could conclude there is not a reasonable inference the jury could make that firestone acted with specific intent course not conceding that well for the purposes of this context at the two six point five level we certainly believe we won the burden of meeting with exceeding specificity far beyond what is progress eighty three one twenty of this complaint speak chronologically more importantly when you get towards the those paragraphs we that firestone not only had knowledge and did not reveal lying to treating physicians about what constituents employees at the plant were supposed to and by the way that happened as late as one nine hundred ninety six when gerald mcmurray one of the plaintiffs in this case was diagnosed with non college and foma went to his on process and a letter that was sent back included no no in city his constituents certainly no benzene organic compounds but rather a harmless list of house and powders that have absolutely no varying a relationship to cancer of water blood forming organs or none of us in some form we go on to allege that firestone interfered with government inspectors that when osha came in to look at solvents or whatever the compound was the solvent was came into this plant and the shift of labels skull and crossbones labels were removed and witnessed to have been removed by people who were the post in this case joe fox and another gentle gentleman named jim taylor both former employees who worked in the see saw all the facts and we let in the complaint that skull and crossbones labels and warning labels removed and replaced with numbers due to logical studies for the jail which be at north carolina university north carolina he states and one of the memorandums regarding his studies at firestone had a policy or appeared to have a policy of placing workers age fifty five or older in higher exposure positions because of the latency periods so she added with the formation of blood cancers and cancers in the one forming organism of kenya because it takes twenty five or thirty five years in some cases going up we've also pledged that when there was a scare about vinyl chloride another very dangerous chemical that used in certain manufacturing processes and was used in the tire building process that the workers staged a bit of a revolt said we need to know about these dangers or what we're going to walk off the job and we allege that as a result of having that experience firestone when they learned about the dangers of benzene in the dangers of exposure to these organic compounds knew they didn't want to have another to have that as an exhaustive list but i think it does represent a list of the more poignant factual allegations to support specific intent with regard to handl claimed number one that the employer narco represented the asbestos dust the safe number two but they knew it wasn't number three they knew that the plaintiff would become ill and die if they were exposed to asbestos fibers on the work intentional or exclusion was met is the bare occupation versus domino's pizza and i think one of the most important passages from that case is the court's finding that if domino's pizza knew that there were criminals lying in wait to attack this pizza delivery driver that we've been a different outcome and that would have been alleged would have been a different outcome routers without being too dramatic and the sake saving that plaintiffs are now dealing with and some who have already passed away and who have dealt with notice my time is up or very nearing would try to take any questions if anyone has you quest thank you is a critically important component of the worker's comp system you know and it is one of the cornerstones in this quarter's better of the forefront of developing programs to limit litigation and keep twenty the court below judge little look at those allegations so actually four times because they really didn't change very much over the course of the format points in the court thoughtfully concluded that those allegations were basically conclusions and the court also conclude in this comes through very clearly that those allegations do not allege the requisite specific intent to ensure with university and they were quick acquainted with asbestos leakage specifically the international tort side of asbestos now not back into the nineteenth century of the early part of the twentieth century how would i explain to a lay audience that one could go forward be other could run i think the easiest way to explain that is that there are different diagnosis results from these materials or chemicals asbestos has been proven for a very long time because he's a feeling  a place where things happen because of because of the situation there in the benzene world if you will and we have some guidance from this and i think we gave this last shrift than we should have in our brief  honors the u s supreme court has spoken directly to this issue one thousand eight international union department versus american petroleum case and in that case in one thousand eight the supreme justice stevens writing for the court concluded that it was not appropriate for osha to mandate a standard that would require industries like ours and many others by the way because silencer used in many other manufacturing facilities not just hir it was improper to mandate those industries to require one ppm of exposure of benzene as opposed to the current ten and the reason it was inappropriate because the science did not demonstrate that the difference between exposing the boys to ten pm of benzene versus one had any significant increase in the risk the court also noted in that significant difference here and in fact if we look at the plaintiffs in this case what do we have eight different diseases out of thirteen claims eight different ones years in the point between three and thirty some of these point it's worked for three years others work for thirty those guys that work for thirty were not older workers whenever they were exposed to whatever mr davis in the complaint alleges they were and it's not clear by the way what they were exposed to because the quoting now there are paragraphs eighty through one twenty or anywhere else explain what they were exposed to the diagnoses came in between one nine hundred eighty and two thousand and six and the workers worked eighteen different job classifications by my count and that's in the complaint i suspect there were probably between forty and eighty different job classifications at that point indicate that these guys all did different things these workers they were not doing the same thing over and over again in also tire manufacturing facilities and others that you in that your honor is the difference yes best us workers were usually in very close proximity to the insulation that was primarily the cause of their conditions the workers in other manufacturing facilities while refineries directly plants tire manufacturer facilities other rubber facilities were solvent since and that sort of use it's much more very it's much different and we are not talking about exposure to benzene it's fewer for the supreme court in the international union case for first for that early on as mr davis was referring to in the twenty's or thirty's there was a link between exposure to your benzene and cancer what we're talking about now and i think with the plaintiff trying to foist head here with is that trace benzene in solves traces of between one percent  three percent sometimes less than one percent that that exposure to those sorts of solves can cause these conditions and what we know from this complaint is that thirteen out of thousands of workers have a condition or are alleged to have a condition that relates to their point thirteen that is not an epidemic it is unfortunate circumstance but it is a condition that is covered by the occupational disease act so long as the plaintiffs can  provision i don't believe so you're right i believe that the the issue about whether there will be a trial or not other words whether this complaint will stand we're not really deals with the allegations there  not perhaps a difference between asbestos and benzene and you know if if if your honor where you're headed with this is why did handily come out the way it did why have other cases come out the way they have allegations that mr davis went through they definitely don't sound very nice they definitely are not favorable to firestone but on the other hand they do not show specific intent to injure any one single claim us in this case there is no link between this activity between allegedly removing a label from what was it the we know we used it  is highly impersonal this complaint sounds like a tort case this complaint makes the same sorts of allegations that we see in all sorts of different product liability cases the defendant knew they were making something bad but they knew they were doing something bad they didn't tell anybody in the point it was her as a result in the torture context that's enough now context if it's an employer versus an employee situation much much more mr what did they say what did they do what did they provide him where did he work where did he work those are the questions and the heart like case which came somewhat closely on the heels of copus goes directly to that the court says we need more specificity we don't disagree with the hamdi case we don't think the court got it wrong but the court did not value weight in half the factual allegations under the specific intent to injure standard specific intent to injure by the way all of this is it is done your honors in the context of a system a system that that allows the employees or injure certain recovery within a very specified period of time and it allows the lawyers certainty as to the result that's what's been preserved that's what's more important when we see allegation in that eighty to one to one that mention that firestone had a safety net that firestone entered into a study within the university of north carolina jointly with the union that the safe that  it says that it paragraph one thirteen firestone was aware of some ploys were dying from cancer is of the blood and blood forming organs but it acted to conceal its knowledge and continue to knowingly put employees in harms way that's not plea that's a conclusion that's an argument and that's what paragraphs eighty through one twenty are it's a clos i'm trying to go through the points that i wanted to make sure addressed from mr davis comments and and there was one that i wanted to make sure that i pointed out to mr davis referred to the keel study and this is a very good example of what this complain not everyone in the industry knew that this was happening something must be done increased risk what this complaint does is take pieces like that and conclude somehow without any factual and the work histories of these plaintiffs has set out in the complaint indicate just how implausible that yes they say but they don't show they could clip it but they don't  my response that your honour's that in this scenario i believe that's probably correct you know it's not supposed to be easy to get around so it's a tough standard for a reason and in a manufacturing facility where there are thousands of workers working at the same time moving around lots of different areas where chemicals where solvent see where because the allegations are very broad very general there about the manufacturing facility as a whole and how it operates and basically they're saying all these bad things are happening in the facility in these thirteen guys working there and they end up with  no doubt in my mind with regard to the cases that were cited hartline is distinguishable on and the court in that case pointed out the key language was that poor manifested its intent to kill but yet it was really a substantial strong probability standard mast with some very vague language about it specifically that when they did their own examination is there a lot do the poet