want i just want to begin by addressing the question of the juror surveillance the private investigators used and i want to just start with this and queer sinclair case with the particular language here of the court about private investigators where the court says and this is a unanimous decision the most exemplary resent their footsteps dogged by private detectives all know that men who accept such employment commonly lack find scruples often willfully misrepresent innocent conduct and manufacture charges the mere suspicion that he has family and friends are being subjected to these surveillance by such persons is enough to destroy the equilibrium of the average juror and render impossible the exercise of calm judgment upon patient consideration to  requests on the juror intimidation matter at the time it was discovered i'm sorry i missed part of the question why didn't why didn't you request a hearing on the juror intimidation matter at at at the very time it was discovered the reason the reason the hearing was not requested is because that our position was that sufficient evidence had already been provided through the hearing that was conducted by the judge when he called everybody in for the announcement of what it happened that was that was the reason why  one hearing was further hearing was requested and i say that because the evidence that was elicited at that particular hearing with the judge established that there was the use of a private investigator that it was not authorized that it involved contact with a close friend of a juror who with who was a that it was a juror that the defense had sought to exclude and that the contact did in fact occur that was admitted so that's all really that's required to establish what the sinclair case says is an odious thing but it what what bothers me about this is the factual differences between what went on and sinclair on the one hand and what went on here sinclair you've got fifteen investigators actively surveilling the jurors until there's a mistrial here you've got one person not doing anything but asking this guy read the birthday party a question and the juror finds out about it properly calls it to the court's attention i think that you're behaving in an entirely responsible way but there's been a lot of attention to these jury issues since one nine hundred twenty nine when sinclair was decided the concept that prejudice is a necessary part of this is something that you see in a lot of cases so so you need  friend right so so the prejudice that occurs is what i began reading from sinclair which is the fear that instilled in people by the use of a private investigator that you're and that is your opponents point out though i mean granted i mean no one certainly not people serving on juries welcomes the idea of a private investigator snooping around in their life on the other hand as the somewhat analogous you can decide how analogous comments about internet  you know their facebook accounts are looked at you know twitter instagram you name it snap chat it's all out there and people do get investigated that way that's all ok their internet stuff the internet presences is not what this case is about i understand that isn't it even more intrusive than what happened here so that's ok then why do we need a rule that says this absolute no prejudice needs to be shown rule you're arguing for because the differences the use of the private investigator on someone who's already been established to be a proper and fit your and what that consequences of using that private investigator can be sinclair is the only case to the addresses that point there is no other case in this court is bound to follow it's unclear but th isn't counsel this is not a case about jury surveillance she wasn't being surveilled as i understand it the private investigator was was directed to interview the friend with the birthday party  find out who was that this hearty it's not a case about jury surveillance well first off sinclair specifically says friends that's right in the language of the case friends that's not required that that that's not the that's not the test the issue is the reasonable tendency right some quote in the case from page seventy four it's it's the here's here's what they said under the doctrine so stated we think the trial judge wright rightly held it unnecessary to allege or show actual contact to an operative that effective agency and a juror or that any juror had knowledge of being observed here she knew about it i mean that she she knew that the contact was made she had no knowledge of surveillance and if he suspected that if you were concerned about that you could ask for hearings so the distinction being between an open contact hi i'm here i wanted to ask you a question and then on the one side in somebody surveilling which tiny tiny bit more it doesn't mean there's that i don't i couldn't find any evidence in the record that there were estimated numbers of what this person's you know exposure years wor cleveland or anything like that so so we were just left with well if there's any exposure at all that's a little more than that's enough to contribute to the disease so anyway though i don't but if i may just wrap up sinclair for a moment sure ok and so the problem that the court focused on in sinclair was that the private investigator can give false affidavits and people know that and that intimidates people and that's what happened in sinclair that was the problem that it was the affidavit had mr cripps lost this case for had he won this case then the defense could come in with an affidavit from that private investigator then you have a a hearing about that private investigators affidavit in sinclair that hearing called required one hundred witnesses but i'm just saying that that is the problem it's not just about the contacts that they focused on they focused on the the use of the private investigator is the thing that corrupts the system that that private investigator can then provide evidence about the verdict or the jurors deliberations and that is the concern and that same thing could have happened here now that that juror sitting in this courtroom this mcgregor not in this courtroom but the one below she is looking these defense attorneys in the eye every day and yet she knows she's being investigated or they're looking at her and we are so so is the point is that that private investigator could say something that would change the testimony she gave in court about the incident and she's she's concerned that she cannot be an effective juror no one could be in effect you're sure under those circumstances if the mere fact it was only one is just as an example of targeting which is even worse than sinclair were at least they did everybody i mean here it was one juror targeted and she knew the private investigators could be getting affidavits about things so that's the concern that's what destroys the system if we can all tire private investigators as attorneys during the trial for the jurors whatever jurors we want specially the ones that we couldn't get excluded then the system is destroyed and if that's allowed by this court th what i'm saying to you is that would become the regular practice it's not just internet presence it's the use of the private investigator very distinct because what you put on the internet you know is out there publicly what you don't put on it is your private life that's intimidating to be looked at and that parse and clear is not change so let me go back to this point about the evidence that you asked mark i want you to explain to me very clearly in terms i can readily understand the distinction between the each and every exposure theory and the cumulative exposure to your theory because i don't understand the distinction to be honest if each and every exposure is a substantial contributor to the cost of the disease how how is that different from saying that each and every special adds up to q middle of the fact that did mr crick have lung cancer which was caused at least in part by a specialist and that's the first question the second question is which exposures w substantial cause of that disease and that the two different questions are in essence the distinction the cumulative exposures are the cause of the disease the that's what you attribute the disease to whether a particular exposure within those cumulative exposures is considered  meaning the defendants themselves their activities are ones illinois or mobil's exposures is a separate question about substantial factors so you know i don't quite understand what you're saying i mean i suppose you know if it worked for five different companies including owens illinois and mobil but including companies a b and c as well maybe his  exposure had contributed to the lung cancer but it might not have been anything he was exposed to by owens illinois or mobil but the problem is the evidence i mean i'll give you one example this was said with an exchange between dr franks and one of owens illinois attorneys the question is if the hypothetical was one minute of exposure to a specialist your answer would be yes answer it would add to the cumulative exposure question and it would be a substantial contributing factor to that person's ultimate disease cancer as i understand science i would have to say yes well take that exchange i mean i thought that was what judge lisa had was not supposed to come in and the judge agreed with that said this isn't that the way we're going to do this or needs to be some minimum level we need to hear about how much the exposure added to the risk we need dated basically and it wasn't there and so that is this evidence that testimony did not feel that the jury i know and that's that you you're saying it didn't mean one minute of exposure what if you had had your way what would the jury have heard well that the jury would have heard that it's my opinion that the key move the exposure based on his years i think it was at least twelve action of brief we said twelve like i think our brief incorrectly omitted the navy exposures it was really about six more years and maybe so be really eighteen years of exposure to asbestos that cumulative exposure to asbestos was the cause of his lung cancer now did you have your industrial high genius my light is on judge while i want you to answer this question was there evidence in the record that was it responsible estimate of as he was exposed to over those years yes there was how much wealth that we didn't have a total for the years because all the at the know all the experts testified quoting the defense experts that you couldn't calculated for all these years i mean they said it was impossible it's discussed in our brief the defense experts but this is done all the time people will say it's so many you know pound equivalence or whatever pounds per year alex's or whatever the measure is booked but we know the duration of the exposure and that if there was almost no its best to stir in all of those years then you would still end up with so little that it might not be enough we don't know i'm saying like we're what thirty days or thirty days to test when he was a day will cause cancer asbestos exposure thirty days will cause double the risk for lung cancer probability that his i'm i just have a we laid all that out specifically in other hypotheticals on substantial factor causation or also exclude the o exposure when we set forth in there the number of days how many boxes of kalo and and and other factors were listed in the hypotheticals that were excluded on the specific defendants and i should add how many fibers there are that's why you can't actually count the number of fires because each breath is alone as millions of five years when you've got visible dust which was also part of the testimony the significance of visible dust that practically always exceeded contemporary standards and and in addition dr frank had the entire work history of mr crick to review the depositions he had the medical history he had the supplemental authority that that it's the circumstances of the of the knowledge of dr frank his experience and his application of that to that specific data about mr cripps exposures to owens illinois to mobile and generally t sending out an investigator without first discussing it with the court and opposing counsel your honor as i represent owens illinois and counsel for exxon is going to rest that issue i will defer to him if that's all right drone or your question judge with your question about whether there's any difference between the every exposure and the cumulative exposure opinion is answered by dr frank himself in his one and a quarter page report in this containing any and all five years would have contributed to developing his lung cancer so that's where i'm trying to dig down here because i can imagine in my mind somebody saying cumulative exposure matters and this person was working in an environment where so many parts per million of sivers were in the ambient air all the time and working there for three years would you know you could imagine some sort of visioning what i think the scientific testimony ought to look like and you could say cumulatively after you've been exposed to all of that your risk of developing you know mesothelioma or lung cancer or whatever is one hundred times i'm stat of the normal population and i'm just making up numbers here but you know i want to know is something like that in this record it's not in the record because players didn't put it in important thing here is dr frank didn't rely on any of the testimony of the plaintiff's industrial hi janice and there's a reason why he doesn't rely on it because his methodology the underlying methodology if i may call it that declares that information is irrelevant to this is the one fiber idea that ok and that methodology is supplied by dr frank both to the question of of his brief that the cumulative exposure is the methodology for action each and every exposure testimony is a conclusion that all a stablished path in the science to determine whether or not a lung cancer can be fairly attributable to a specificity exposure i feel that that must be true after all of these years of a specified course illustration and it requires article that mr mccoy advanced but his witness dr frank rejected refers to again good science in the published literature that is peer reviewed that says a cumulative dose of twenty five fiber percy c years is necessary in order to double the risk of an especially related lung cancer that was also rejected by the methodology of dr frank there was no evidence in this record that either the exposure of mr crick was anything like twenty five fibers percy c years nor was there any testimony giving any meaningful quantification to whatever it was that they wanted to attribute either to exxon mobil or to owens a little and so how do  refers to the methodology is whereby relock scientifically reliable causation estimates are made all the time it's folly to suggest there's that science has no way of trying to reconstruct in a reasonable fashion what either the cumulative exposure is or any exposures attributable based on the facts of the case and the problem with dr frank is the entire methodology is divorced from the fact ray ok i understand his causation theory to be sort of the factual equivalent of what's known as risk contribution theory as a legal manner in mental tax a tort cases like the lead paint cases where the the court says as a matter of law the burden is on the defendant to exculpate themselves all lead paint manufacturers here whatever especially you factures are involved because the nature of the risk is such that we recognize that for the court recognizes as a matter of law that everybody is responsible on an industry wide basis that that's never been adopted in the especially his contacts absolutely and it's only been very narrowly adopted by some states in lead paint and it really right so it mean it seems to me that that's that's the underlying theory of the expert causation methodology here is that because  head that they are very clucks i don't think dr frank made any distinction between the two as his report and his testimony makes clear and whether they're close or identical the question the court has said is paramount is what's the underlying methodology that would support an opinion with respect to either is it sufficiently linked to the facts of the case and are those facts reliably analyzed under the reaches a certain point that's enough to create a medically ascertainable fact for the average person that we're going to call a substantial contributing factor  lung cancer sufficient for me to say it's linked took to a specialist and any exposure to a product that contained especially since the nuff for me to say that defendant did were they getting close to that though in their proffers during the trial when they're talking about how many boxes he handled and how you know they sounded like they were getting down to some more specifics dr frank declared all of that irrelevant he never considered it his methodology his methodology has to support his opinion the and he doesn't want to acknowledge as he writes as the record shows twenty five to thirty of these kinds of reports just like this one in a day in this litigation he doesn't want to be bothered with the facts of an individual case he doesn't want to have to worry about quantification that's the problem here this is why this case is so important this problem shows up over and over and over again in this best litigation as well as other toxic court litigations and that's why the courts are drawing  line and saying enough this is not science thank you very much grosvenor and the reason why there wasn't a discussion with the judge after judgment german gregor came forward with the information about the birthday party and mr x now what i'm but of opposing counsel you know what the investigation is not such a big deal as you've alleged in the briefs why not just run it past the court hers because there wasn't there wasn't a feeling that there was a need to do that it was such a but nine action i thought shots didn't respond that way the judge was clearly troubled in his remarks he says maybe i should take this to the to our rules committee this was not a witness someone who didn't really have any relationship to the case as judge shaw recognized so it was and these for me asked about two questions remember your birthday party your member of mr be brought to the court's attention immediately no doubt i would like to i am very troubled by this i think very troubled and i want to know why you think that this investigation was an all like and juror social media profile and that's just her gator goes in person to her friend's house that's on earth thing in itself she was sure to hear about i can't imagine that the friend would not contact her and tell her look a strange person appeared at my house and they're asking questions about her what it will be out hard how is this even remotely like looking at someone's public facebook page i i i don't get it well i think that looking at  it was that the discussion with mr stayman was certainly nowhere near as broad it was very focused and limited and based upon it turned out i said you know not only certainly but the instructions to that investigator were to be you know very limited by not this basic information they report back to us which is which is what happened if the answer of those questions was yes they're both here then the determination was we need to bring this to the judge's attention because there may be a real bias here that has to be concerned and maybe this juror and he's here who obviously that didn't turn out to be the case she did bring the attend the contact to judge shah's attention  imbedded in what he said when he makes the determination that he can't take any action about this unless he can sign prejudice and of course there you've run squarely into evidence rule six zero si b which cuts off most of the inquiry that you'd actually want to make he really can't find out if there was prejudice because that would intrude into the jury's deliberations so by saying you have to find prejudice he essentially says it's  i don't think that's the case i think that in for instance the olando case before the united states supreme court that court indicated that the ultimate test was discerning whether or not there had been an actual effect upon the jurors deliberations and thereby the jury's verdict and it was from who the what and the when information that could be obtained consistent with rule six or six that the district court judge then makes that reasonable investigation of a friend then what happened in the sinclair case and the other it's quite the defense have an investigator follow a friend around for a y o as long as he doesn't find out evidence that is outside of the trial but is somehow fed to the juror that affects the jurors deliberation if there isn't any instance of intimidation or reason or any interference with the judicial mechanisms as there was in sinclair sinclair is a much different case if there is not that intimidation and if there's not evidence that is should not be considered by the juror then that line hasn't been crossed but you know it it makes me think that when the judge summons the vinaya are the judge ought to say to them and ladies and gentlemen if you're called upon to serve on a jury please be aware that you may have people following you and you may have your you know facebook pages reviewed and you may have investigators so you know mind your p's and q's you know while you are serving on a jury raises the price basically of jury service i straight ahead i would suggest that any surveillance like that that occurred in sinclair or any surveillance of the juror himself or the jurors family members would be utterly impro inappropriate and certainly that's not what occurred here so if there is a line to be drawn it's certainly that there should not be any overt unannounced undisclosed surveillance of the jurors family well i think that would be fair but that's not this case at all i want kind of wasn't such a big deal i'm sorry judge judge i couldn't hear the first part of your question you are chopping up a little oh dear well i mean i can't imagine that not making a juror worry about what kind of information the lawyer is my dick up and you see if it wasn't such a big deal why would you have consulted with the court and opposing counsel first and say we want to look further into this question namely i find so much telling mr bell i really really am worried about this well i don't think there was any chilling of that information was out there and i don't think it should be a surprise that maybe there was a follow up question to mr spam and to see if he knew and this isn't the sort of situation of you know there was some thanks for the minute ok so it's not proper to draw the lines after the fact for private investigator surveillance that can't be done we can't have hearings after every jury heard about what happened nor can jurors be concerned with the risk that these investigators are going to give false affidavits like happened in sinclair and again had mr cripps one who knows what the answer would have been from the investigator about what mr scheme and actually said it might have been well different as it was and sinclair to causing this trial now i would also add dr frank's testimony as we see it page five of our reply brief was based on his personal qualifications hypothetical facts in evidence at trial that were not objected to craig's deposition testimony his medical records a smoking history synergistic effects of tobacco smoke and asbestos fibers personal experience studying workers exposed to asbestos beginning in  sixty eight the medical and scientific literature the biological facts of asbestos the latency period for his case of disease i say safe i say this because because it wasn't just based on each and every exposure and he didn't even talk about it it was based on how long it was and i would add that that the qualification requirement was rejected in several illinois cases that we put into our brief that was rejected in the recent last decision that we provided to supplemental of the already it's not part of the asbestos world all right and finally finally new york i would say i would say that that the defense experts at page eight of our reply brief said that the reconstruction it's impossible so so it's based on his testimony and in scholtz the expert excluded in scho