please the court my name is joseph olson and i have the privilege of weapon representing the pack of foundry in this case and this is a unique case that is not as the plaintiffs have suggested a run of the mill donning a dolphin case instead this case is the only case in which a district court has certified a class when the dining and dotting of showering activities are not required by the law and are not required by the employer instead the compensable any of these activities will turn on whether or not the plaint can prove that these activities are required by the very nature of the work they perform but this record is articulated the legal standard as requiring the plaintiffs to prove that changing clothes in showering at work as opposed to somewhere else will significantly reduce the risk of health to the employee in certifying this class the district court violated the most fundamental precept of class action law which was recently rearticulated by the supreme court in the tyson decision and that  precept is this a court may not give to a plaintiff or defendant different rights in a class action than that party would enjoy an individual action and that is exactly what happened here when the court certified the class in such a manner as present preventing w from actually defending the case based on the unique exposure profile of the plaintiff along the way the district court also made six separate reversible errors beginning with its commonality analysis dukes v wal mart has taught  all that the real issue is common answers and common evidence not common questions and here the district court said it could find the common evidence in the proffered expert report that the plaintiffs put into the record problematically the district court ignored the fact that will pack a put required to take in all the facts and resolve the dispute to determine whether the case can be certified more to the point in the west the pradesh will case from this court this court has said when it's a battle of the experts it's not simply enough for the district court to acknowledge the battle and certify the class and figured out later instead the court must look at the expert reports and determine which expert is more persuasive on the issues related to certification that simply did not happen here and that alone is revers more problematically their expert acknowledged and i quote that the plaintiffs encounter exposures to different sets of complex hazardous agents which vary on a daily basis and in an unforeseen manner so what the district court here actually did was found that the common evidence it could rely on was the lack of a common experience of the plaintiffs ones that were in different locations your honor the the class comprises for the f s a class six different plants and four different plans for the rule twenty three class and those plants used three different types of technology for building the cores that then they found the the iron parts from those different processes require the different inputs of metal alloys they require different imports of chemical agents and the different jobs within the plants are thirteen different departments ranging from the guys who actually melt the metal to somebody engaged in quality control located at different parts of the plant cause these people to be exposed to dramatically different types of particulate matter chemicals even molten metal and within the plants there are different job functions within the thirteen different departments and within those job functions and departments there are dramatically different and unique environmental controls some some departments have gigantic air hoods that suck up most of the particulate matter to get it out other areas the employees where unique facials that supply fresh oxygen to them while they're working that type of p p s put on after they're already being so it is true that from a standpoint of the chemicals exposed to the particulate matter exposed to the duration of the exposure of the intensity of the exposure and the frequency of the exposure it is dramatically different across the six different plants the thirteen departments there and in the dozens of job functions within those departments to using the we get six clancy ridge release and in each plant you see there's a certain different exposures that there are different i assume equal they are not your out of the six plants are not equal and he may have a different condition in others yes you know we're you know i'm focused on dani and duffy but it seemed to me that whatever is going on here it's more of the threat of ingestion and that doesn't seem to be covered by dani and i think that we would agree with you your honor that that would not be covered by dining in darfur in fact nothing that the people are exposed to while they're actually working on the plant floor is really the subject of this case based on the legal standard the court has or ticket lated what is the subject of this case is whether or not these people need to immediately leave the shop floor change their clothes and take a shower before leaving work or before doing anything else or whether they can do those things later when they get hall that's the exposure window that matters for compressibility in this case is that duration of time between the end of the workday and when they take their shower what does what does a company tell the people in each of these as you define separate areas that do that the company tells its employees that is as a matter of good hygiene and good personal care they ought to to change your clothes and take a  challis ought to but you don't you know we do not require that in fact the fact that we don't require him has already been decided by this court we were up here on appeal on our summary judgment motions about five years ago and this court affirmed the district court's finding that there is no employer requirement that these men and women don dolphin shower at at the plant so we do tell them as a matter of good personal hygiene and good health care they ought to do it but we make no requirement that they do  commonality problems carry over we're into the predominance analysis here unfortunately the district court really didn't do a predominant predominance analysis it simply pointed back to its commonality analysis and said that was good enough as we just heard it wasn't but that alone is reversible error because obviously predominance requires a weighing of whatever the identified common issues are against the numerous individual issues and hausa how do you think the plaintiffs should have  o organize their case your honor i think it's highly likely that the plaintiffs couldn't organize this case as a class the the dramatic differences are so great among you know to get the class so  itself by looking at the perfect exposure profile of the individual plaintive determining whether or not that actually constituted a health risk which is the first prong of the controlling legal standard and then determining whether or not changing your clothes and showering could reduce that risk and then determine whether or not doing that at work cost a significant reduction in the risk then what package would have a fair shot at defending itself in these cases but when you aggregate everybody under the theory the plaintiff's expert use that says because we can't figure out what these guys are actually exposed to we're just going to assume the worst that deprives will pack of its ability to defend itself and that's exactly what i think the tyson court was talking about so are you saying that the plainest presented no evidence to support their position that these people should take showers or you're out of there to present to the extra report of dr armstrong who was an industrial high jenna's and he said based on the chemicals that may be available in the present in the plant everybody should take a shower and change clothes at work and it would reduce the risk of help but what he didn't do in fact what he said was not appropriate was do to do was try to identify what chemicals in what other substances the individual plaintiffs are actually exposed donn is not work unless it's shown to be entered into one indispensable to the principal activities in here because we've already proven no legal requirement no employer requirement that defaults to is there a health requirement so here we have to necessarily look at what is this individual employee actually exposed to what risk if any is being made to its help somebody working in the quality control eubacteria thirty five hundred since and again your honor that's a theoretical probability that comes up group the employer divide them into groups and say here's a bunch of employees who are working with these chemicals you know and this is dangerous for them now certainly  same chemical have the same risks that this witness testified to and they can be grouped into a class that would only satisfy part of the problem with the individual factors or your honor and that is because the legal standard requires us to analyze whether or not the dining duffing in showering needs to be done immediately after working at site as opposed to somewhere else you have to look at the different duration of any potential exposure again the exposure on the shop floor is not really part  do with the chemicals they're exposed to the work they do the hours this or that now are you suggesting it's impossible to group these thirty five hundred or divide these thirty five hundred workers into what you're saying answer my question my apologies are you not denying the feasibility of dividing these thirty five hundred into groups that have common r is because if you get to that would you just answer my question and your honor i said i said i am denying the feasibility are i'd like to tell you why that's all right sure and the reason for that is because once you get to find those commonalities the groups become so small the class action no longer makes sense now because the exposure profiles are so dramatically different two people standing next to each other working on the same line have a thirty five total hundred people to work with and you're suggesting that every single one of them has a different risk profile and different chemicals and different from theirs out you're saying pretty close to every one of the yellow that's ridiculous what possible basis for you could you have for thinking that thirty five hundred workers all have a significantly different risk profile so that you can only deal with them and thirty five hundred different laws under it's starts with the different exposures they have to people working the same time same machinery same exposure to chemicals don't you there are small groups of people whose exposures are very similar but then there are other factors that come into play that make them dissimilar including the health risks that they bring to the table themselves this is about reducing risk of health and the the duration because people live quite honestly we have a place to live two blocks from the plant and employees that live sixty miles from the plant what's the largest group to do the same kind of work the largest hold you up a little bit longer here but i really think is you know i was in this last one yes and disagreed with some things but it does appear that there are some in some factories some some pretty  toxic things that people have to wear masks who are trying to have to do you protect themselves on the spot and that's already done and they have it they seem to fit into a much different category than many others and i don't know how many of those  subcategories there are but i think what judge posner's exploring is he can't be there all thirty five hundred suing at once but there seemed to be he pointed out certain groups and we got six factories here even before they were decertified correct and and that of the six factories there are different procedures different things used and the other thing that it did in looking at this it seems that the expert was concerned about some kind of a dermatology issue and it seems to me whatever permeates all of these factors is what you might breathe in there's nothing doff or whatever correct are there some who put on other things that are the ones i described in that one section where they are would have heavy duty there they are they do but they put them on after they're already being paid and ok so that's part of that's build into their shared pants and whatever and take them on and off that protects the skin maybe not the thesis of the hands so you don't take a shower you know that in the way that the expert described it is some basic chemicals that are in a lot of these things they're working on grinding and doing this and whatever they do in the foundry are different and if there's any potential damage which i do after work is not going to affect the amount of particulate matter they may be exposed to inhaling it while they're on the shop floor doing their job see my time is up ok well thank you very much and in light of the procedural prosecutor of this case at the time of sort of cation particularly that will pocket inform the district court that it was going to file a downward motion did not really outline what that dollar motion was deposed the expert and then chose not to ever file a dahlberg motion prior to the time of certification is really dispositive of a lot of the issues that are before us at this time usually the way the only arguments were well i didn't know not saying they waive their arguments your honor but this court the circuit has issued very strict guidelines starting in two thousand and ten with american honda that said that if a party files a dahlberg motion before class certification the trial court company this circuit said quote where there is no dollar to challenge a district court may rely on expert evidence for class certification unquote and what the citation was in the international paper the supreme court applied a very slim your set of logic if there's no dollar challenge to a certification expert there is no legal error in admitting that expert evidence once expert evidence is determined to be admissible the persuasiveness of the expert is for the jury the exclusive province of the jury and in the absence of a daubert challenge the supreme court held in two thousand and sixteen a district court can deny an appropriate or cation motion supported by admissible expert opinions only if it determines that no reasonable juror could have believed the expert to a fuck you make sense and it's fair to the trial court think of it this way in fairness to judge priest back in this case judge agrees bach was dumped with expert reports from numerous industrial hygenic us there was no direction from the defense as to what portions of any opinion they deemed to be inadmissible and watt just no direction whatsoever as to the expert report that we provided they provided experts they provided experts to but again remember the supreme court admonition that if there's no challenges they're deemed to be admissible and it's the province of the jury to flush out instead well pocket here would have a trial court unguided and it's staff trying to go through ph d level industrial hygiene expert reports and try to figure out winners and losers and i don't think that's appropriate and i think that's why the rules that this court laid down starting in american honda in two thousand and ten and the supreme court laid down in tw know it's pretty clear you can have a rigorous classification analysis that's great that's fantastic i would encourage that and i would also encourage all the parties that want to present their dollar motions to do it do it at the time certification they in fact inform the trial court they were going to do it but they did it now were up on appeal and there's no guidance no what tack nothing about which expert opinions should be in and which should be out and we're talking about all these expert opinions but nobody nobody challenge them and we think that the bright line test and rule that was laid down in american honda if you challenge under dobber you have to resolve or classification it means they did have no other words they're experts in the testimony conflicted with your it are correct that it would you want gobert to make a decision by the court which is to be believed in any individual case you honor if people are going to present expert evidence to a juror before the jury hears it they're entitled to have dahlberg hearings determine what is and what is not immiscible but let's just take a hypothetical let's say nobody challenges under dogma all the expert evidence comes in that then becomes a question for the jury if no one's going to object to the evidence if it's admitted into evidence now it's a question for a jury who would we go from here well we think i think that you follow the clean products decision in the absence of a dauber challenge a district court may rely on expert evidence for class certification ok so those go to class i guess and i say were do we go from here because the district court decertified part  correct so light in tennessee and indiana and now we're left with what is it three or four in wisconsin there's four plants there all within the eastern district of wisconsin where the cases have ended and i know what about the others the court decertified in order those seven transferred back to their home districts so they start all over again they do it well because because he suffered in transferred no they get the benefit of the court record they don't start over from scratch and what would what are they it in different states they where this case left off procedurally the court ordered separate complaints to be filed for those jurisdictions but before he dictions yet but the the ones that he reserved for his district how many workers are involved there because numerosity wasn't challenge it don't have that committed memory but thousands thousands in the four plants in the eastern district of wisconsin who are five hundred upton's there's five hundred options i believe concert no five hundred options were for all six plants remember and this is one of the issues we have an appeal that was scott the rule twenty three class is a state law wisconsin class it's exclusively wisconsin law so it's it's the folks in indiana in tennessee have no rights they couldn't be in this class even if they want to because they have no rights under wisconsin law so there's two separate things here we have a rule twenty three wisconsin class now that's what this appeal is about and then we have the separate issue involving these tennessee and indiana workers and what said in our brief is respectfully you folks do not have appellate jurisdiction over the issues concerning the tennessee in indiana workers because they're unrelated to any class certification order to say they're not in the class they're not in the class never have been never moved for classification ever requested to be in a class and that's why under rule twenty three out this court does not have the ability to look at that it is you know the words this is just a simple supper and transfer order and ordinarily i think you can only get those up to this court on a mandamus or a twelve ninety be so you're saying there are these say roughly a thousand workers in wisconsin so proceed so we've had different trial plannings over the years in this case at one point in time we were going before the court initially granted summary judgment we were going to try to grouping in one of the plants for one of the  folks that have to wear flame retardant uniforms because flame retardant uniforms have to be left at the plant and with the commercial person because if the workers launder it at home the flame retardant capacities could come off and there's big advertisements out in the plant for the workers use the washing service that we provide because there's toxins in the clothing and it might wear off your flame retardant properties if you don't do it so what we think that's a stronger group we want that one of those groups to be included i think that's what half the workers so we've proposed different workers fit that category do that which at half the workers y yes and you thought that was about seventy five i'm sorry seventy five workers did you say no i apologise so we proposed that recently in two thousand and sixteen to do a flame retardant grouping back in the two thousand and eleven timeframe we were all in when it was just a pure awful us a case the trial court had a set up to do a department in one plant and that was that and being with seventy five two hundred people but before that could get to trial the district court granted s judgment against us your honour's were part of that process that went up and down part of a process right but anyways so there's been different proposals over the years as it relates to damages and we just want to talk about damages briefly because really most of their complaints go to damages we had and the district court did some dahlberg work early on in the case on what are called time study experts the same type of experts that are at issue in the tyson versus beffa keogh decision where somebody comes in and does a great measurements of time and uncompensated time eccentric that's one way to potentially try these quote unquote damages since this case  rect correct and then the other issue during the course this litigation the butler first of sears roebuck decision came in and discussed the concept of individual hearings we have not briefed that issue whether or not it should go to a time motion study versus the individual here but the important thing is and i think your honor was onto a little bit this is as far superiority goes superiority in a classical setting the number one consideration is it a negative value suit these are small claims five hundred thousand three thousand six thousand what out of their small claims i understand there's fee shifting under wage in our laws but that does not negate the fact that these are still negative value suits in these this case why because as you see from the very robust industrial hygiene reports this case involves and needs experts this court has held that n f l s a cases you can't get your epilepsy experts time and money back in other words it wouldn't make sense to spend twenty thousand dollars to hire an industrial hi janice in an individual case when the most you can get is three thousand dollars plus attorney's fees so this is a case that needs certification and grouping and it's only fair to the judge because even if this court the certifies there are still hundreds of options there were dozens or was like seventy options before the court even certified it there's going to be lots and lots of cases no matter what happens is unfair to judge agrees bach to expect him to handle these all differently or somehow make people file new suits probably only to get taken related and come right back to him and then he's got to deal with the issue again we think in fairness my last min one percent i sort of made a calculation that it might be that people taking that amount of time it might amount to about one hundred one hundred dollars per week  i don't i don't think that's the over time i don't think so i think that that's based on a twenty dollars you know somebody making fifteen it's less than that but if it's twenty dollars an hour and now you go time and a half it's thirty dollars an hour and they figured it would be about twenty minutes on each and you know i put that calculation in there so it comes out to about one hundred dollars a week with your soon being that there's every single week somebody works more than forty hours in other words like the thanksgiving weekend if i don and donna takes me twenty minutes a day to down and die off but because i only work twenty one hours that week i'm not a lot i don't ever get that money the f l s say only lets you get time for overtime  firm the decertification of the for indiana and in tennessee what about that we have to affirm that split as opposed to keeping the thing intact yes well keep in mind one pocket move to decertify we said we don't oppose a judge we just think you should separate transfer it so nobody wanted the indiana tennessee people's and wisconsin court ok so i mean the trial court ordered it we didn't want  injuries that people are suffering not just their hands and work stuff but down their bodies because the dust gets in there but yeah there's there's work comp claims in that that they're not lawsuits because their employees i'm not a part of this are a few a few things your honor and a lot of this back and forth with mr snodgrass about where do we go from here and how would we try this case is somewhat enlightening because he's never submitted a trial plan in conjunction with his rule twenty three motion to explain exactly how we would try this case and i would also point out that you know the district courts and in this circuit have taken instructions from this court to mean that a trial plan is required and there is no trial plan the bell wether trial he spoke about was before the summary judgment ruling that was when it was still closetful that this case was going to be decided on a rule of employer or decided on a legal requirement also just to hit the there  is no employer requirement that fire retardant uniforms can't be washed at home that's simply not true the documents in the record say you should probably leave them here because we'll make sure it's done right but if you take them home here's how you need to wash them to make sure you don't damage the f he put into this into the briefing that we should assume ten minutes per day per employee on a five day work week there's nothing in the record that supports that those numbers are right his own time motion study expert says that the average amount of time is twenty six and a half minutes per worker per day there are people who have testified through iraq or tory's in this case that they spend one minute changing clothes at the beginning of their shift and one minute changing clothes at the end of the shift there's a guy who put in an affidavit that spends thirty minutes on either side of the ship doing it any even takes a saw because we got a sauna in one of our plants at the end of his work so the time that the numbers he's used to prove a negative suit are fabrications of his own imagination that's not what's really here and this case goes back to two thousand and six not two thousand and nine because there's a three year lookback period so the fact that we need to certify this based solely because it's a negative value suit is just not correct and also the discussion about the lack of a dollar motion what is clear is this court has said in the when there are competing expert reports it's not enough for the district court to say we have a battle of the experts will deal with it later the district court based on what this court said in west is required to determine who's experts are more persuasive on the issues