the morning may it please the court i am edward w cochran representing mr tolan mr bush in this case as opponents but also as pointed out in the briefing represent hundred twenty nine other residents of this neighborhood i do wish to reserve five minutes you make honour's the appellant's believe that this is actually a case of first impression for the six circuit because of the fact that previously air dispersion cases from permitted users under the clean air act were preempted by the clean air act and there is no history of such claims in the in the six circuit we undertook this case and prevailed on a motion against preemption we then went forward with the kids and the court ruled on favorably to us ruling that we had not  well equipped the judge quote connected the dots between exposure and harm to property but you cochran reading this material is this is the overriding question that i've got to ask you why did you never tell us anybody's property in the affected area never do a blood test of it of any of your clients it just looks like you got all these people to agree to bring a lawsuit and then you didn't do any that well your hon first of all we weren't we investigated for medical injury and found none we don't believe the plaintiffs have currently provable medical injuries that they have incurred we proceeded with the case on  level we assert so your honor that that's disputed by the police but yes we had our so then did you get anybody to say that use if he got higher than background readings on a particular piece of property it's going to be worth less well we had our toxicologist report that there would be harm to human health and we had a real estate appraiser broker out a report that any property that was subject to such an environmental claim was the guy up in cleveland who'd never been to the area that's right your honor but we never got to that in the army just does that mean just as a practical matter there was no real estate person in the affected area that could say that i was a soul less than they would have if it was across the river up up up here whatever it is you are under ohio law the owner of a residential property can testify as to his own loss of value of this property and that was our intention court we've got have a basis for him to say geez i think i probably wouldn't get as much as if i sold it well the basis would be that the property is exposed to twenty three year toxics every day that the reasonable and foreseeable use of this property is residential so the reasonable and foreseeable use includes among other things the breeding of the air every day and i think that a an owner of a property in a resident can testify that if the air on my property is not safe to breathe over a long period of time that that impacts the value of my prayer you say he could testify were there affidavits to that effect or are you just saying that that's the inference from your your doctor rhetoric well there's  physical harm no we don't we don't allege that any of these two plaintiffs either of these two plaintiffs have suffered a current medical injury from inhaling the air and we don't think that's the question in a property damage were attached to briefs and other documents and they were produced for the defense in these soil readings are are in the record of some of the which is that we must show something more than contamination of the air on the property that we have to show something more to connect other dots  including evidence of personal injury evidence of that air actually flowing over that particular address and we don't have evidence of personal injury  is a matter of first impression but i thought and help me here counsel i thought the issue that you weren't saying and the judge in your adversary's weren't requiring current you know health damage that you're puking green but that you had to have some evidence of potential future health damage and that would be what reduces the value of the property because that you tried to get russia in to say if you live there for ten years you're going to have these health problems and nobody wants to buy such a such a property are you saying that that's not even the right standard that any kept him out because he'd never been there didn't know and you say that your clients would have testified but they didn't present affidavits or anything did they to say you know i said no i attest that i tried to sell it and i didn't get as much as i thought i mean you can't usually get to trial by saying what you bought by not saying what you would do a trial just claiming that they do any such  don't think so your honor but and that's not the reason or the basis on which the court dismissed their case i don't think the judge agrees that is that it is sufficient to show exposure to toxic material from the defendant levels over the p s r f c combined twenty two other toxic materials and  expert's affidavit and testimony that says nothing more than i have reviewed the literature i am a clinical toxicologist experience in this field upon review of the literature i am willing to say and do say under oath that exposure to these levels of these contaminants over that period of time and that small space ok that's the expert but just on the standard i'm looking on page three the judge says plaintiffs indicate they intend to show new course showed physical damage by demonstrating that manganese found on their properties is harmful to human help now was he misstating your argument  found on the property in the air in the soil it's been washed off the surface of the homes on a on a regular basis i don't think there's any question has been a deposit of manganese on the properties  i think the judge was not willing to accept as a basis for the claim that there is expert testimony that the people of this small area of community will experience harm to their health over a long time that's not of ideology and an expert but i just tried to be clear that the harmful to human health prospect of lee even is part of your claim that's great ok good thank you that i would say that's the principal basis for the property damage because that is the reasonable foreseeable use of the property ok you'll have your you'll have your five minutes rebuttal council your red lights on ok thank you my name is mark kessler and as you know i represent the police nucor steel marion incl long with my partner derek diaz just macand you hit it right on the head that the real question was is why why did you not perform the test and the real answer to that is they didn't perform the test because they're making a presumption they want the court to presume damages and in an indirect indirect trespass case we can't presume damages what they're saying is if it's harmful to human health then it's automatically equals substantial physical damages to property or a substantial interference to their use there's this is not a case of first impression certainly not under ohio common that has addressed this issue for many many years they reference baker we had an oral argument before the court made its decision and the court said hey what's the case that you rely upon the first case they said they relied upon was little little very carefully or to kill a did that you must demonstrate substantial physical to him just to property or in that case substantial interference with the use of the property in this case there is no presumption there cannot be a presumption in judge moore plea addresses that to he says listen if we do not have any he relies he relies upon several cases in his in his in his opinion but he says if we do they're there if we have that presumption there's no difference between nuisance and trespass trespass has to have a higher bar and that's what  specifically found following baker and following little hocking judge warbly said no useful purpose would be served by sanctioning actions in trespass by every landowner within one hundred miles of manufacturing plant recognizing particulates come from any affection facilities and it's going to happen and if it is harmful to human health you do have a cause of action for trespass but if it's an indirect trespass you have to you absolutely have to relate it back to the property damage or what you have to do is identified that there's a substantial interference with  maybe missing it i thought here that the judge didn't even get to saying that they could raise a claim of harmful to human health once the experts were disqualified your you're right your honor he did but what you also did in his in his memorandum opinion in order is he first identified the burden of proof in the first in the first couple pages of it and then he went to the daughter proceeding and allowed allowed t e bit but this argument you're making about nuisance versus trespass and you have to show affirmative impairment of use to the property that's a sort of a second string to your boat isn't it two in addition in that preparatory maybe this is why i missed it their claims are for both trespass and nuisance so even if you distinguish the two you would still have to go to trial and one  they get to the harmful health point well if if they if they got to it yes i understand you're upset you're absolutely right and in this particular circumstance even if it went back on something like that they can't prove damages as you saw and  as you pointed out the one of the ways that you have to identify damages is is by demonstrating the physical damages to property or an interference with its use in this particular case there are no damn just because is just a complete failure in this particular case that's correct you're on that is absolutely correct your honor in in this case and to get the point plain that the plaintiff does not identify with any specificity throughout its briefing and certainly throughout argument that i was able to discern where the court abused its discretion it's after reasoning after reviewing the record we feel unfortunately he did or fortunately he did not abuse this discretion without your honor i'm happy to answer any questions that you may have otherwise i believe our brief and certainly the argument to date has already addressed the issues that we wanted to address l your are goners we we do believe that the question of property damage is whether there is any substantial interference with reasonable forseeable us we do believe in assert that it's residential property a foreseeable reasonable uses constant breathing of the air by yourself your children and your family and that this should be recognized as a substantial interference with the reasonable use of a residential property when sufficient and other toxic materials although that may have some superficial intuitive appeal your doctors the navy lives on the land for more than ten years is going to show signs of help problems because of the chemicals and the two people that you're putting forth here lived on land for more than ten years and show no help problems so how does how does that get explained away first of all he didn't say that every person but he said people in general would be subject to harm from being there ten years secondly the type of injury somebody some an unknown person and then a five piece of property may show signs of help problems ten or more years down the road and therefore a one hundred twenty nine people get recovered him a percentage of all the people living in this small labor hood will suffer harm over a long period case there's no requirement that we show causation of any injury all we need to show is substantial interference with reasonable use and if you an injury yes the causation of the cause ation ultimate conclusion that your theory would lead to is not now not an indeterminate range we do have an air model in this case with an i supply that's drawn around the plant based on measuring air concentrations it's a circle around the plant speak tween a quarter of a mile and a half a mile from the plant which is a residential but that then ties to the health evidence doesn't that is any plant a myth something the quantities are what's important the ice will play with just shows you quantities and then you seem to agree you've got to connect to harm to help somehow somewhere somehow down the road and that only gets us to dr retching because in that sequence yes that's correct we feel the judge was overly demanding in rejecting his work which simply reviewed the literature review ed the exposure data in the area in question and the reason he reviewed it but isn't in a sense that's the problem he doesn't say and correct me if i'm wrong he doesn't say the literature says that the ten nanograms per whatever is bad for you and here's the reason that these people have ten nanograms he just says generically here's my opinion is that fair reading of it i think a fair reading of his opinion is that exposures at this level in other words in excess of the r of c for a long period of time yes your honor at that low level well based on  the statistical studies that have been done in other exposure areas around the world that this will cause harm to human health over a long period of time but when you say you know based on all these studies he doesn't give you any circumstance other than his dipsy dixit as he that is if i were doing it not to take over your case i would say this article says ten nanograms per whatever is going to be the level for harm and i have tested x or y or i have definitively shown that it's going to be more than ten nanograms he doesn't give you any of that kind review the exposure data and the i supply thier model and does confirm what levels of manganese exposure were and he does compare to studies where that level of exposure governed and people suffered the forth kind of it's been tested many times but it's very subtle up to observe a person over five ten twenty years and know whether his neuro psych abilities are diminished from twenty years ago or a child who was born there your opinion ever been reduced to writing and publishing his opinion in this case is opinion about this hypothesis i don't i don't believe so that he's got this theory has this theory been peer reviewed and where well the peer reviewed studies stand for the proposition that exposures over these levels cause this kind of harm over a long term this site has this theory he's advancing here ever been except i don't think i don't think it's justified to this effect in another case ok seems to me that's kind of your problem anything anything else to