by eliminating a viable injury through the use of a case management water and it was an abuse of discretion for the trial court to change the substantive louisiana law on the of i'm not sure i have not any answer but that but i'm just trying to see if there's anything i know that this is something that is come into courts as a as a way of case management it was taken from a new jersey supreme court  superior new jersey state court decision way back in the eighty's and it seems to work but the question is how do we go about the process of making it work is as efficiently as fairly as  can move the procedure up back however it may lie to roe quire the the claimants in this case to have a prime a feature showing earlier in the procedure than you would normally expect in the life of a case and part of c m o fifteen in this case did that and that was requiring plaintiffs to get an expert to prove that they were that they had this particular machine in i pine order per se or tatic horribly saying that lone pine orders are incorrect what we're saying is that this particular case management order added a requirement through the has and g m infection but it does talk about the diagnosis to mister hammer the path of exposure and the causation that there is there is a report on causation d it's just not specifying that he has an n t m infection because he doesn't have an empty infection it didn't grow out in t m it grew out staff but it we do have a report in the records of causation it's  as a harsh remedy under police and we were not asked to to brief it on that issue we do not expect overdue out hope that that becomes a waiver you know that you didn't move to reconsider based on police after the dismissal or anything like away the claim of the individual based on the faults of attorneys or lack thereof and so we shouldn't have any waiver of the police factors in light of the court going into our pinion a step beyond in a step further in this case of eliminating an entire classification of injuries as a viable injury due to the fault of the defendant basically at the the management of this case but i do have a lot of problem with the missing your case with prejudice is a defendant a common practice case so i i learned medicine along the way and you know i can see where infection and i think it wouldn't be allowed to vote this and the louisiana court let them ot district litigation go easily a lot with those cases that did produce this d m l but that's what we're seeking if the trial court the india corporate leads that our case is doesn't fit in the confines of the m t l because our injury mechanism is different we have no objection to that but our question i was going to ask you were you you say you don't have problems with lone pine waters in general i thought your next statement was going to be that you did have a problem with this particular specific lone pine order because of what it required but it sounds now like what you're saying is no my real concern is i'm just challenge the m t a of course actions after it entered the m infection after culture because regardless of whether or not it is just rock is has to discuss a little bit earlier regardless of whether or not it grows out of cultur twenty one days does it mean we don't not have a cause of action it doesn't eliminate our cause of action and what this lone pine order did was not only required a in expert opinion on causation at an earlier time that's  problem the problem with what it did then was that it eliminated an entire classification of injury that would be recoverable under the easy and a law that is not recoverable because of the strict confines of this order and that and that is it a claimant cannot base a cause of action that a product caused an injury unless that claimant actually has evidence that he had the entry and in this particular case mister hammer pleads and in discovery produced a sworn plaintiff actually contending that he had and mycobacteria abscesses infection is rule forty one be dismissed i don't believe so your honor ok so we can we can treat that is taken that this is even though it wasn't said expressly this is forty one b why shouldn't we be applying the police factors is there any good reason not to apply them we can talk then about how to apply to six of them but before we get to that is there any legal reason why we shouldn't be walking through the police and else yes why in the asbestos six isn't which is cited in our briefing beginning at page sixteen this court addressed a factual scenario that is analogous and virtually identical to what we're facing here it was  dismissal pursuant to a lone pine order in the context of multi district litigation the in the case management order the court provided very clear guidance what the minimum threshold of evidence would be in order to prove an injury and that was an asbestos related disease there were multiple plaintiffs that did not have a sufficient sufficient evidence to prove an asbestos related disease in their cases were dismissed pursuant to that will pine order did they did they allege that they could prove it under a different body a law are different jurisdiction or something else i don't think that case was like this one in that respect well they did it they didn't well there was one plaintiff in particular that only had evidence of plural thickening and made the contention that evidence of plural thickening should be sufficient to establish an actionable injury and the court had already determined that evidence of plural thickening without symptoms without its symptomatic asked asbestos related disease would not be sufficient and what this is is the court is not applying you know substantive legal standard here the court is setting a threshold for a minimum a minimum threshold of evidence that must be presented in order to demonstrate that plaintiffs have the injury that they claim they what you just said you're talking about this in the evidence and that's fine but that doesn't mean that there's not evidence of a different arm that could have been caused by the make mince of the equipment isn't that correct so i don't believe there's any science in this litigation your honor that supports any other type of injury other than into the human faction ok well why don't you let this case go back and i can see the east at the end i order to limit this case but if it's the plaintiff can prove other injury under louisiana law what's the problem with allowing him to go back to louisiana while the multi district with a geisha and judges have the discretion and the ability to take up any pretrial matters in the cases that are transferred to their jurisdiction all the way up through dispositive motions and so if they can't dismiss a case that has a valid cause of action with that cost can they i agree with that your honor they can basically not they cannot do that but i law they can prove a valid course of action so if that's true given the changes they can't do it in the multi district litigation because the multi district litigation i think we have a cause of action so is it appropriate to let them in louisiana attempt to show that that only course of action i would disagree with that your honor and for these reasons the hammer's position your opposing counsel i used to defend medical malpractise cases so i am aware of many cases where the anybody how nic has graced the causative organism the cause the infection  and if there is one i think it's appropriate to give the claim of a chance to tempted to demonstrate that hope with all the respect in this particular litigation but the only when when push comes to shove and hammer is ordered to produce evidence to support the allegation they made a complaint he can't do it and so he goes back in and and says well you know that  wasn't the claim that i was actually making i'm making this other claim but if you look at the complaint respectfully your honour's the complaint doesn't assert any other cause of action ma but this this would be an amendment after after a complaint or after the case has already been dismissed and it's a dismissal allowing the bus ability of a member of the complaint if you wish to stay there or just let it go back to louisiana and let it fight it out over in that particular jurisdiction you know i query what what is the cause of action or the theory of liability that that would be what that would be raise because i mean individual so in that puts it like if that if that were the claim then there still is no evidence of actual injury because the only the only the only suggestion of injury in that circumstance is but that's why you have discovery i mean the point there are people who are treated for antibiotics the un about ike's are too strong and there are injuries and it turns out that it would have been the scribed medication in any event let them they get a chance to prove their case let me ask you this and the polish your police factors would however they pronounced let's assume they do two factors that that i think carry the day are the meritorious ness of the claim and the effectiveness of alternative sanctions because the inability of hammer to produce evidence infection is a fundamental failure proof and it undermines his claim from the very get go and so if a if a claim is not valid then that is then there's no other alternative sanction that that would be effective but don't you have to go through those factors you're looking at factors five dollars and six dollars and dismissal is a last resort when there  nothing else there but don't you have to give us some reason why there's nothing else there and therefore it can only be dismissed with prejudice and i think we do your honor i don't know i'm talking about the judge and well i think the  issues that were teed up by the order to show cause were not only the failure of hammer to produce evidence of in c m infection it was also the failure to produce any specific causation report now and this and hammer have not disclosed any specific causation experts in this case paragraph ten g of c m o fifteen required hammer to not answer my question my question is why didn't district judge give an analysis of alternative sanctions and then them out of the air yeah i think the the district court was following the template that was identified in asbestos six and and  believe that is that is why the the the police factors were not addressed in that order ok but you can discuss the six recognized police factors are the norm they should be applied as best the six had a narrow exception while arguing about whether a narrow exception up costs if we don't find this case on all four with this best a six the district court ordinarily takes the st crack factors and then there is the diet the diet drugs case from two thousand also that affirms dismissal without analysis of factors even of those factors didn't apply the m d o closure seems to have dismissed taylor's case just because amer had a different causation theory than most of the other cases that's in this house that in itself not an abuse of discretion what with all due respect i don't think it's a different causation theory i think it's no causation theory hammer did not produce any specific causation expert report well if there is an infection which follows the surgery that's correct your honor but it's a it's a staph infection and a p x needs infection and there is literally zero science that supports that a three t can cause that type of infection there is no science in this record there is no science in this country that suggests that these are common organisms that that are  the subject of common surgical infections and the three ts not even on the differential diagnosis in those with respect to those infections and if the court analyzes the plaintiff's expert question no in that i think we would we would be able to prove that regardless of the jurisdiction that's certainly our position your honor now is a rematch and appropriate you know in the context of multi district litigation where you know this case is under the jurisdiction of judge jones we would we would disagree with that and for efficiency and many other reasons we think he should take this case up but but it's certainly our position would be able to prove that elsewhere based on your answer to me just a moment ago i have an additional problem that the district court did not dismiss this case on the basis of an expert report it only dismissed because of the lack of an infection that so the order itself the dismissal order itself only refers to the lack of infection now the order to show cause was broader than that and i think that the district court narrowed i think the district court perceived that the lack of evidence of an c m infection itself was rendered the the cause of action so fundamentally flawed that he didn't have to go to the expert report i think that this case is remitted and the district court  considers that the issue again that the expert report is is the failure to produce a specific causation expert report is is is another fundamental flaw in this claim and even if there are alternative theories of injury you know whether it's injury from antibiotics or any injury that hammer is claiming there's no specific causation expert report he was ordered in c m o fifteen to produce a specific causation report and he didn't and so no matter what the theory of injury is he has no basis for it thank you very much we will be here from mr central and your  those twenty days are have are enough under the easy hand that to create a cause of action created a viable damages and we do have an expert report regarding how those how mister hammer eventually was diagnosed with that  l infection we do not have a it doesn't culture out after twenty or twenty one days we agree that those are the facts but we can't write those twenty days out of the story and that's what creates a cause of action respectfully request be sent back to louisiana but the really have an expert report that is going to be sufficient i don't know i don't know louisiana i would certainly if i were the attorney in this case to be very concerned that to develop a cause of action i'm going to need worth in the expert report i already have and since your opponent has waited out the x and his opinion and and frankly in my opinion to his report is not necessarily going to be sufficient for the theory you're going to have to develop to provide a course of action are you prepared to find another expert absolutely right and if that's the case as your other pointed out the tr dismiss the case on lack of an expert report dismiss the case on lack of an n t m growing out after culture if there is a concern with the causation link between this particular patient and this particular injury as this injury is different than the rest of