waste from a nuclear weapons facility that's not what we have in this case that would be a case i would argue that it falls within the context of the use of the materials these are every single case that we cite to related state law claims from exposure to radiation and the part and the defendant sought to make it a pipe case of the case and bring it into federal court justice the university of pennsylvania did here and the court probably found that that was not a case for price innocent and again the focus needs to be on the context and we know this because if you go back to the very reason the price anderson was created it's really essential to understand that and focus on that a statute designed to encourage industry in the private sector to invest in the nuclear power and the nuclear weapons making industries in order to induce them to participate in an industry that obviously from obvious reasons has great participate in those industries there's no basis for saying that the prednisone that was intended to cover all exposures to radiation no matter where those exposures may take place was rather respectfully i disagree that was the case once again where we look at the context of the use of those materials and it directly relates to the nuclear power of a nuclear weapon history the case here has if anywhere at any time the use of cesium triggers python anderson any use of radioactive materials would win that would mean all activities whether in research in education in science industry would find think that it's an outlier there are one or two about right decisions from way outside the third circuit and i know those are the cases that are pointed to but if we extend those outlying cases against the tide of all the other we're going to find the federal courts in the bid with radiation exposure cases simply because they involve some material that maybe once upon a time has been affiliated with a nuclear power plant that it's not the congress reading the statute in fact they rejected attempts to a med python or send two to expand the scope to include for instance using medicine in hospitals and use in universities that effort in one thousand nine hundred eight was rejected by congress and it should be rejected here we very simply there are certain education institutions and they're listed in the statute and other resources that actually but actually operate a test nuclear reactor i think penn state for example is one such institution  pennsylvania is not such an institution this was research were eating animals to understand better the effect the hypothetical effects of radiation on on men and women instant each state has had nothing to do with producing nuclear power or with producing nuclear weapons so in the research context where a university may trigger a nuclear incident meaning a meltdown or release i write spread release of  congress did have the opportunity to consider whether to expand the scope of price andersen to universities and they rejected bat so i think the question your honour's raising is what is the nuclear incident what is the significance of  material that may trigger price anderson and again i think the court case is a clear choice here do we look at the simple fact of that particular class of material being used well naturally as congress intended with the that otherwise would be filed a bill in state court are prevented by the statute and in effect that eliminates the right to recover certainly the right to pursue a reasonable claim which would be which would be prosecuted in state court under a very different standard under a very different dose threshold and there are a different set of considerations particular sin was enacted to cover public liability actions nature and know that by that reasoning your honor every time somebody gets a dental x ray or for a chest x ray which involves radiation theoretically that could that could be seen as an incident but the term nuclear incident an occurrence and radioactive material as the statute uses them defines them and then the courts across the districts and circuits of this country have applied those definitions them to nuclear occurrences in the context of nuclear power when you clear weapons making not in the context of university research is that really we've had universities doing research with radiation for over half a century there isn't a single case that the university of pennsylvania  universities and gauge and all the time involving radioactive materials that hospitals across the country engage in when they use radioactive materials and then when i said that there is no case that that the parents have no case i don't mean that there are no example in the case which involved uranium mining but not mining that had anything to do the rattling with the nuclear power industry the generation that case of the court in that case rejected applying presence and in fact called it hogwash efforts to amend that you so i don't see any authority any authority that this court ought to rely on for the expansion of the scope of this act to create a preemption of state claims in new jersey we don't even get to causation must we get above a very high level of dose and under state law which is where this case and every other kid so you can see that if it stays in federal court you can't make the case out that is exactly right we  an expert who established a certain dose based on the discovery that was done under state law the standard is is that a factual causes had a significant contributing factor to his brain cancer we can make out that massive releases of radiation unless you have the type of nuclear incident that price anderson was intended to protect against that doesn't mean that those claims are meritorious doesn't mean that those complaints can't be viable and radiation exposure there's no reason to federalize and thereby preempt all state laws on these down this massive group of cases and that decision finding that python anderson apply we had to amend the complaint to conform with the court's ruling that doesn't mean we were conceding that we agreed that  see what we would be able to determine in their fact defendants i think is pointed out in their briefs produced you know thousands of pages of documents including thousands of pages of record hours and hours of videotape documents only a few weeks before the close of discovery so we were trying to get access to whatever discovery we could get in become a federal court action and there's no reason to believe that that's what happened congress intended no no decision of a district court or a circuit court has said that's what should happen and i'm looking at specifically congress considered expanding into some areas and rejected the at and decided against expanding into those areas and the areas that congress did not go into and expanding the scope  five as the court is quite aware this all boils down to a question of statutory interpretation what's the intent of congress as reflected in the statute and congress knows how to create limitations next congress then lists three exceptions to public liability to any liability and one exception is worker's comp so workers comp claim is not brought into price anderson in subsection to congress to find a nuclear incident as any occurrence in the us causing physical injury or property damage due to the radiological properties of the source special nuclear or byproduct material and that's what weapons industry congress did not include that exception that language and it knows how to do so as just proven in subsection w right it limited or created exclusions about the fact that intended price anderson to cover a allegation of harm from the radiological properties of byproduct material period no exceptions and it's not some sort of  protection that's absolute you apply the federal permissible dose limits as the standard of care there's a complete federal preemption of nuclear safety that's a fiction weighted to the enters he said he permissible dose limits tell me licensees using these materials for research or whatever purpose that you can use this material for the beneficial use of mankind but you must keep the doses within these limits these are permitted to workers in these doses or that doses would be permitted to members of the general public and that is the new deal to pricey anderson and so there is a liability under price anderson in federal court if there is injury and those those limits have been exceeded so he will see the louisiana case is now a liar the wrist watch case no but i would just say you have to be careful when you talk about radiation cases because you see you have to focus on that language gets sourced special nuclear or byproduct material did the radiation come from certain special nuclear byproduct material you can have radiation from radium dials in wristwatches radium is not sourced special nuclear or byproduct material with the x ray analogy or can't x rays are not source special nuclear a byproduct nuclear byproduct material it's the material it's not the place where the material is utilized in fact congress wanted these materials to be discovered researched and the beneficial uses of them radiation out bounces back from the rocks and that's how you can tell the formations you know and let's say you're looking for you're doing frac and you're looking for certain formation really going to turn your  nuclear incident which doesn't involve the onset of offsite nuclear incidents can occur on site they can occur off site and you know can only occur offsite woman indemnification or lack thereof in this have small amounts of radioactive materials creating small risks you can rely on conventional insurance you don't need the massive amounts of financial protection so  material and pass through natural gas was a source material this case and the much areas byproduct material they would like medical x rays things like radiation from naturally occurring uranium want to duck year question so to suddenly say it's a plated here in the district court was concerned and they only wanted to do partial discovery they wanted to deal with issues  motions and we conducted extensive discovery ok you think you se expert deadline had out with no expert reports whatsoever being produced plain and sent a letter to the court saying we're going to discontinue those claims and you should just send everything else back to the state court which of course  so it was more than twenty three months before plaintive decided that they were going to voluntarily withdraw without prejudice the private andersen prank in the meantime there had been not only the notice a rule based it had nothing to do with whether or not the requirements of price anderson should have been evaluated by plaintiff wrong before we spent even in that match year to judge counts point there are forty seven docket entries conferences with the court at no time with the plaintiff ever say we need more time we don't understand this material you know our expert had been able to evaluate it nothing like that and to expand on that  t specific to the medical malpractise because that has been raised here as well whether that should have been sent back to the state court plaintiff counsel has said on this appeal that the it wasn't fair to basically to him to enter summary judgment because he didn't really pay attention to that medical malpractise kind and there was only limited discovery directed to price centers and that is absolutely not true and the records are very clear there were five scheduling orders in this case and now the second one was when the case was transferred to judge reason and he readopted we original one from judge smith so we can we can call it for there was never any limitation on discovery all of the court might be able to be very cycled in the state court and that was the word of the court you it is little consolation to lead again who has now spent all of that time preparing this case for trial and again this is a case where  only in plaintiff's complaint each count of which incorporates those presenters and allegations but also very specifically i think on page fifty three of our brief where you identify the paragraphs of plaintiff's complaint where they incorporate things that could only that certain components were not being met when in fact they were but let me get even more basic plaintiffs had themselves say to herself incorporated these allegations into those planes into the f that price anderson would apply plaintiff amended complaint and did not remove from any of those counts the price anderson allegations plaintiff didn't separate them out so i have to say the starting from the was separate in theory from the allegations of what came before the medical malpractise claim was that once dr where was diagnosed he should have been given different treatment which should  alleged medical malpractise after the diagnosis this was a true no i think that would i think that one could separate those out and say who are guarding us of where the cancer came from the cancer could come from any source as we said this is this is one of them fortunately certain number of cases that occurs naturally in pennsylvania and everywhere but if the cost of that cancer were taken out of the equation in plaintiff's actual allegation was dr where was i had this diagnosis of cancer you defend dance the doctor the individual doctor who was sued and the other ten entities and you should have given him different treatment for his cancer he should have gotten x y and z treatment instead of the treatment that he got that claim which it doesn't matter where the cancer comes from would be a separate type of claim that would not be subject to pretty sanderson with those  tations now i'm not the plaintiff ever pleaded that but certainly plaintiff never defended that and never never produced expert reports to defend that and having waited until they did this is  kind of substantial prejudice to a defendant that this court cautioned against and the ferguson case we can't wait around and try out some cause of action in federal court and put defendant parties through the entire gamut of litigation and then on the eleventh and a half hour before trial say i want to go back to state court and try again and this court has recognized that in several cases and this is a matter  good afternoon again aaron free world i only have a few minutes for my rebuttal and i do therefore don't have enough time to go through what i will respectfully just note for the record with numerous inaccurate statements about what happened during the conduct and discover three months late but fourteen days or so after the close of discovery there's really no way for counsel to say once pryce anderson was found to apply we give up and we had to conduct discovery and in fact one of the things that was learned and confirmed during discovery well it meant to the issue of dose the amount of radiation that is the factor on which right bill it turns in this type of a case the amount of radiation exposure there was and  turns out what was confirmed during discovery is that workers like dr ware and the research laboratory university of pennsylvania they were exposed to radiation didn't receive individual monitoring bad just like every other worker who works in is supposed to have so one issue of was their negligence it was clear negligence in not even bothering to monitor dr where the other researchers and the environment in which the radiation exposure was taking place so of course we start plaintive starts with a very up battle in determining dose but the ultimate death comes by the by the request being accepted to have price anderson applied because now we're dealing with a level of those that was intended by congress as all the courts have found to be a look at liability limiting threshold liability limiting threshold so that contractors like exelon companies like exxon and general electric will want to come in and provide nuclear power to this country to set a very high dose level so that only those major exposure cases that's where the nuclear currency is in this context only major exposure incidences will be those that federal statute will allow recovery for will even allow it to proceed out state court handles the full spectrum of claims available under state law and that's what this type of that any type of radioactive materials byproduct materials regardless of context kids basis for a price anderson preemption but you know mr hood they said it talks about the beneficial uses th congress intended to encourage research into the beneficial used to this of these by product materials the opposite effect is what's going to happen because if i think your son is allowed to govern over and let's say university research involving byproduct materials like cesium or industry applications a byproduct materials or other kinds of research in academia industry and all walks of life then there will be strong and powerful disincentive to those who have control of those materials to protect not only workers like dr ware but to protect the public because they will be treated just like general electric an excellent are treated like three mile island would now be treated under the statute as only faithing right willoughby in those meter nuclear currents is not in the types of radiation exposure or chemical exposures or dangerous product exposures that find resolution in face not just an uphill battle which we often face where a party for instance doesn't keep records or doesn't do the things that they ought to do so that we have an ever body of evidence regarding exposure but now we have a mountain to climb in terms of proving a level of exposure that's only intended by the clear language of the statute to apply in nuclear occurrences so for those reasons this novel out of the box unsupported without authority proposition that all applications of these materials regardless of context must be federalized and plaintiffs must have those claims in effect preempted and to your honor's earlier