these cases and i want to start judge by saying that that of the six of victims that were in these cases two of them had household exposure as infants and  those were dick mesa paul and milky way or another the six who died two of them developed asbestos related disease and died much younger than the others they had an onset aged between seventeen to twenty years earlier than the rest and they died sixteen to twenty six years earlier than everybody else who were those two that was dick mesa paul and milt boyer the same two had the childhood and infant exposures and that's not a coincidence that's why the jury needs to consider whether these non workplace exposures are significant you clues are not covered by worker's comp which are and so that's that's right that's a that's a separate point your honor yes but they're not covered by worker's comp and the jury might agree with the plaintiffs experts that these are significant exposures but the point is that there is quite a deep there is a range of exposures that take place this case is it is a very classic example of the whole indian of types of exposure to experience from asbestos that's because in part it's six cases but in part because of the nature of a factory like this that produces asbestos containing products and it's not just a situation like in construction made history this factory actually produces these products and as a result of that there are different scenarios scientifically for the exposures so dick master paul whose case was stricken on summary judgment because the experts opinion was considered unreliable he was born in one nine hundred fifty four e mail matched the paul contributed twelve years of exposure when his father worked in the plant and dick was as an infant starting in one nine hundred fifty four exposed in that household and those fibers came home on his father's clothes not on to classical clothes and the point is the importance here of what happens to young children which was stressed by a couple of the experts that they actually get greater exposure they're playing closer to the ground they're playing harder they're rolling in those asbestos fibers and they're spending all their time at home that's something that needs to be protected these children and the point also was made in the testimony concerning mr massive paul that his father's car was full of dust and that when you got in his father's car you could see that dust flying around process is is a series of genetic mutations and if you don't have that series of genetic mutations you will get news of the old but we know that's what asbestos triggers and the questions of who are the unlucky ones mutation and of course most cells die so they don't live long enough to get mutated multiple times so as a result of that we have only certain people that are getting the pattern of mutations necessary for measles the only dick mass of paul was what was the unlucky one in his family and i would point this out i think i've not sure the suicide in our brief but the information about the car appears in dick's case which is fourteen c v one eighty six it was that the e c f number two fifty five which is transcript page sixty seventy two the same thing happened in his house with a laundry laundry was shaken out by them fly the mother and again that also appears in that same b c f now i want to turn to roger c here for for a moment because roger also his case was dismissed for summary judgment and he worked at the plant for a little less than a year in one thousand fifty for somewhere around thirty to sixty minutes every day seven days a week for thirteen years to a creamery or dairy which was located two blocks away from the plant and at this location visible dust was observed limits men and hundreds of people that's that's correct your honor there anybody else  so so yes the visible dust was observed there and i again i don't know we pointed this out in our brief but the citation on that was as our appendix document number thirty nine  page three and that's it that's an entry that was made in a timeline it was prepared by wire hauser's own environmental manager a mr record with regard political one no question about it that is the most important that is one of the most important factors the second most important factor though when you evaluate exposures of people in a community is the proximity of closeness because the x factor is what affects the unbundling or dispersion of these fibers so the closer you are to the point source the greater the exposure as you go out from the point source there is less so so the tute the two factors both combined yes not i appreciate that but do we really have data from dr henderson or mr parker for this to see how for cit personal situation i mean what they advance didn't cover the kind of traffic he had to the plant and the rest let that's correct you there is no study on point about that type of situation but that's why this court has allowed extrapolation from similar circumstances especially when done by highly qualified experts like dr  at the chief deputy meola just for the state of wisconsin had a position for thirty years and this is the law based on epidemiological data he was also the chief medical officer of the state for environmental medicine that's you know that's an environmental expos and he was also the chief medical officer for occupational exposures so he was in a position he was in a position from personal experience to be able to make this comparison despite the lack of a particular study and let me say this there's no doubt that judge connally's interpretation of the data that it that it didn't meet what exactly was in a published study maybe is reasonable and the jurors would argue about it they'd all get together and they'd say well that's that's one way of looking at it but they also there's another way of looking at it and at this time re judgment stage these facts have to be considered most favorable to the plaintiff and not only that but the question of what's a substantial exposure under wisconsin law which is what we're talking about i mean no doubt these is invisible dust on this record he's carrying heavy milk cartons every day through that visible dust he's kicking it up he's breathing but what whether that substantial in his overall exposure history is a question for the jury and that's that's where judge connelly with all his efforts and why grant a sixty two page opinion this is a lot of effort just went too far in making that final decision because the question of what substantial has to be going to the jury and the questions of the underpinnings of this factual data is also one that's not for the gatekeeper will adopt dr anderson applied the proper methodology by considering all these different studies and a prince walls of asbestos fibers which is really what these studies are about how they travel in and get up in the air and unbundle and the dispersing of those and he applied that methodology that's where agreed and it definitely should have stopped and said ok the rest of it's up to you dr anderson to form your opinion and it's up to the jury to decide it and it's up to the defense counsel to do their cross examination as to whether consideration is a right that's not that's not correct church know that the that the data about the exposures which is primarily through the expert reports was submitted that data was presented put some numbers on it but it was the same data and we did that because now i understand about that that it went right did you actually make the argument about the significant exposure prior to the motion reconsideration definitely yes we  and remember here on this record we also have about four or five witnesses who observed visible dust in the community five or six blocks away here we've got somebody who's two blocks away worked at the plant from one nine hundred sixty six to nine hundred eighty for two of her years were in production but the rest of her time was as a clerk or a secretary in the detail department she was not a a production worker for most of the time she was often in the in the office areas and i say that because her husband had far more exposures in terms of years at the plant and he worked there from one nine hundred forty six which is about the time of their marriage until nine hundred eighty four in the fabrication areas of the plant where there was actually the cutting  mostly it was the veneer department but this was a directly adjacent to the core mill and he came home with a visible dust of the same color as this mineral core dust that had the s best s in it on his clothes so in her situation again the comparison has to be drawn between the exposures that she got from his household presence and what she got at work the substantiality factor has to be motion to dismiss that was filed by wire house and that was ultimately the judge ruled in our favor on that motion to dismiss as to the private nuisance claims judge conley did they were raised they were raised meaning at the time that the person that brought the claim they were living in the property still the response to that summary judgment motion was that the proper law in wisconsin is the metropolitan case and the standard was cited in the response brief the only thing that wasn't done was to say oh the defense standard is nonsense we didn't say that because the response was to cite the proper standard and to say that's the one that should be considered there so there was no waiver because this was made in a response brief this didn't come up for the first time the proper standard in a  motion to reconsider we offer a stop we also cited there that the restatement of torts in the response which was the where the milwaukee metropolitan sewerage district case gets its standard about the right you enjoyment and use and there's no requirement in there of a current right so so that's that's what i would say on the waiver point because it was the proper standard was cited in the response brief there can be  document pages seventy three to seventy five talk about her role as a clerk also i would point to in the same case twelve c v eight ninety nine her case document over two ninety two twenty nine which is has the request for admission of facts to post facts i should say and pay at fact number sixteen is that same information and i'd i'd like to try to move on just briefly to add the point judged that in wisconsin law feel free to ask whatever questions you took on the waiter but under wisconsin law the causation in asbestos cases has been determined in two cases at the summary judgment stage actually i should say in three cases the summaries judgment stage by the proposition that where you have competing exposures it's not a question of what the quantity of those exposures are at the summary judgment stage that's ultimately for the jury to decide whether there are substantial or not but it's that it's the evidence that those exposures probably occur and that's the standard that wisconsin follows in whether something should be allowed at her s so if these exposures probably occur then the cases should go forward to the jury for a decision on these and of course that wisconsin standard is as in many states is th exposure it does not have to be the cause but only needs to be a cause and i would take it a step further in the coward's case which was cited in  in the coward's case which was not a fully published decision but under wisconsin rules can be cited as a as a novice as precedent but it's persuasive authority if one can see where that distinction is but that's what they say the coward's case is very similar in that it involves a lot of these kinds of circumstantial exposures where people were bystanders and those also talking about the workplace exposures to i'm the one that would group would result in bystanders exposures to people bringing home that the fibers on their clothing were family members and judge connally's ruling allowed those family member exposures to go forward to the jury providing that they were proven to be significant and then he found in two of the cases that they were not substantial which is where i've our east mention the line was should have been drawn and he should have stopped and just made the determination about the importance of the significance and should have evaluated these exposures as a fact finder but he did determine that the family member exposure should go forward and i believe that's that's a that's a position under the law and their own clothing is properly considered by the jury that there was another decision we pointed to i think it's a pity page sixty three of our brief i see my white lights on so i but footnote forty four where the judge the trial judge in another case from another fireproofing plant said that the victim's exposures on their own clothing should go forward because there's no evidence of rules about workplace laundry and so on that would affect the home laundry situation so again in the absence of the record on that point our position  thank you your honor robert riley for owens illinois i never quite been in the situation nothing but mr mccoy said has any relevance whatsoever to the claim against my client or the issue that's on appeal with respect to my client and the reason for that is simple in the trial court he alleged that some of the products used in this warehouse are plant were made by my client we have discovery on that issue we prove the negative we filed a summary judgment motion and mr mccoy voluntarily dismissed with prejudice the claim against my client we are not the source of any a single a specified or in this plant in this case the sole basis upon which he tried to keep us in the case notwithstanding that was that we we got a patent on an idea and we license that and that pact we license at the weyerhaeuser and it had to do with how to construct the interior of the door that's all we want in the trial court because no case anywhere in wisconsin or anywhere else has held that you can impose tort liability on a mere patent license or the eleventh circuit has expressed lee said you cannot the supreme court of texas expressly said you cannot but the plaintiff cannot cite a single case that says that is a basis for tort liability and there's a very good reason for that it is axiomatic that a patent is merely designed to protect an idea it doesn't it's not a product it doesn't give you the right to make a product it merely protects you from somebody using your idea if they infringe you have a right to protect  no court has said that if you get a patent on your idea that makes you a product manufacture or product design or for that matter judge connelly ruled consistent with the foregoing that there it just isn't a tort claim against a mere patent license or and that is all we are alleged to be here judge connelly is not the only federal judge in wisconsin that has addressed the argument of the plaintiff here that somehow you can simply make up this obligation under tort law by saying well it should have been forseeable to the patent license or that weyerhaeuser would use the specimens and wouldn't control the space will you actually even in pattinson preferably but not you didn't require us and did not require it and it said so outside the claims portion of the pattern which is the only legally operative portion of and the licensing agreement makes no reference at all to a specialist and we know weyerhaeuser was using a specialist core made by other defendants because we had to chase down all that evidence in this case long before they mr mccoy made the very same argument about foreseeability is enough to create this legal obligation before a judge crap in the mosque case and we cite that at page thirty six of our brief she called that theory misguided she noted that an individual does not have an obligation to prevent harms even if their forseeable harms unless those harms are in some way attributable to the individual's conduct here it would have to be attributable to us in our status as patent license or and that's the flaw the flaw in the mosque case was it was somebody who hit a piece of equipment didn't have any us as a sonnet mr mccoy's claim in that case was well it would be forseeable somebody could continued product with the piece of equipment just scraps of no no no that is not the basis for a legal obligation ramifications of the rule of law being advocated by mr mccoy would be tremendous it would turn patent law and product liability law upside down there well over a million live patents out there and i looked it up in two thousand and fifteen the patent office issued over three hundred thousand patents and in one year under this theory every one of those pan donors has potential tort liability for anything that in retrospect is alleged to have been forseeable about the use of the idea by somebody else clearly not within the holder the patent doesn't give you the right to tell weyerhaeuser what to do or what not to do or how to run its plant or how to control its dust it would impose absolute liability on every patent holder if if that theory were embraced and i would argue respectfully that's why no court has embraced it it would inhibit the goals of the patent laws to innovation and publication of ideas in exchange for protection of those ideas if they're infringed and it would create uncap and tort liability there's a reason there is no authority to support the position i respectfully submit there's the reason this point wasn't argued i will see them less there are questions i'll see the balance of my time thanks for  by their implant as best as exposure during their decades long employment at the warehouse plant the weyerhaeuser facility in  that's undisputed the wisconsin wisconsin has a worker's compensation act which provides everybody to workers and in return for that remedy if they have an occupational disease or an occupational injury it provides it be employer must provide benefits and in return the employer is a mean from  weyerhauser had immunity from port liability for the occupational diseases the mezzo feely omas of these three deceit that's undisputed so frankly the complete answer to this entire case from weyerhaeuser point of view is simply this it's barred by workers comp immunity and that's it now i'm going to gild the lily in talk about some things that don't matter but everything i'm about to cite doesn't matter because worker's comp immunity applies for their arledge concurrent clauses for the household exposures communities it's community exposures household exposures from the workers own clothes household exposures from the workers family members of those don't matter wisconsin recognizes that if there are it regardless of whether their current concurrent causes of an occupational disease if there are if there is an occupational disease it's covered by the worker's comp that is it because it traces back to the worker yes it is was it or your original source it may have been spread around subsequently is your originates with the employer yes it's because the disease is caused at least in part if not in  total by the employer's occupation it's not a separate not a separate injury there's one injury in this case means that the now there are cases on the ad and we cite him lang is the case in our brief that specifically deals with that there's a more recent case which we don't cite agger link foods wisconsin appellate cases recognizes that there may be concurrent causes to a disease but if one of them is occupational then the workers cop act applies the worker gets benefits and the employer gets immunity that's part of the bargain a worker's compensation in this regard it should be noted that wisconsin adamantly says that the workers coppers the worker actually be interpreted to provide where possible inappropriate then a fit for an injured employee now there was argument in the bridge that mantis the manifestations of this did not occur until long after these people either we're home for the day or quit working or whatever well that doesn't matter in the reason that doesn't matter to fall one wisconsin it's worst compaq divines energy injury to be both an injury and a disease so it's pacifically covers occupational diseases and occupational diseases don't just manifest during the course of the day typically they arise in their chronic and the rise over a long period of time in second way the act deems the manifestation of the date of the injury of the occupational disease as the last day of work for the last employer whose employment caused disability so under the expressed terms of the statute of course they are that the wisconsin legislature said you know we're not going to argue about the timing of this we're just going to deem it has to be the time of the last day of the last employment in issue for that reason there are a strain of cases holding occupational diseases that's not right we haven't had a chance to respond to the inside a whole list of cases but i'll just cite point one and that's market tahn t versus city of chicago it's a seven circuit two thousand and eleven case it holds that we're we won the issue of workers comp immunity at the trial court as to the the deceit its own clothing the community exposure in the family mint member clothing  we want we actually won those two but on different grounds with the workers comp immunity applies to the mall and is the complete answer to this case  now in order for us to to be in a position to argue these alternative grounds it was necessary that they were adequately considered by the district court and that the plaintiffs had an opportunity to contest the e c f docket numbers thirty three seventy five to fifty seven in three ninety two it is clear that the district court considered these motions considered our arguments in fact originally the district court dismissed all of the claims based on worker's comp immunity now he did permit the plaintiffs to me end and in the course of that a minute we never quite got back to the original place where we were but the law didn't change there's still a bar about workers comp immunity so clearly this is a lavish you on appeal for and secondly workers comp immunity a class now as far as we c till this precise factual issue that is a take home exposure of asbestos by family members or the workers themselves or community exposure  had never come up in wisconsin before that's what the district judge concluded but it is not novel and it is not in our pain and difficult because it has come up in a bunch of other places we cite these in our bridge this very particular in the melinda's case the california appellate decision what was decided during the course of the arguments all of these issues which we think is particularly instructive for a couple reasons one what first all those cases hail those don't create that a separate calls of action a separate tort liability against an employer that exists some somewhere outside of work with company unity provided that the original exposures and if that injury is covered by the worker's comp path and it is here it was in each of these cases then there is no other lab built the that warehouse or can have because that's the bargain under the wisconsin worker wisconsin courts oftentimes cite california courts own issues own regarding that was the meaning of the application of the wisconsin workers comp back and we think that case is particularly instructive as to what the got her maybe during a distracted from their employment in the question was whether that was covered under the worker's comp act this isn't a frolic case there's no question but that these plaintiffs had to you know if it's a product obviously if you are an injury on the job for that product that you externally and show that it's the improper design of that particular product so that's a separate claim you're saying you can't separated you out actually just been i was speaking of frolic cases but it but in terms of a ploy employer in the question that is up understand what you're asking me is can an employee state a product liability claim against his employer the answer to that is no not if the injury is covered under the worker's comp at the manufacturer of the pro now the district court properly excluded or first that's the answer to all the other issues or an answer to all the other issues that's dispositive of this case the district co also granted summary judgment based on its first ruling under dahlberg that the plaintiff's experts testimony should be excluded of course court knows that the framework is that whether or not the framework was applied is a question of law were you didn't know but the courts application of that framework determining whether or not in its role as gatekeeper that was met is not a question of law it's an abuse of discretion standard and is this court exposure that's the be where the allegation is that dust as best as does left the plant and somehow contaminated mr sate ca for while he was delivering milk at the creamery well as we dissident started in our brief and as the district court hill playing its expert said there was a zone of risk you had to be within one point two five miles of that plant for  well is the district or also properly hailed the plaintiffs couldn't under textron extrapolate to a ticket to mr c hay for because mr c hafer didn't satisfy those conditions and that's the judge excluded the testimony of the far as mr ca for is concerned now the plaintiffs then moved to reconsider and for the first time made a back of the napkin calculation about his deliveries to this business creamer that even though he didn't live within near there even in march still they say well that satisfies it that's enough for that's enough for the extrapolation to include mr c j the problem with that is since that calculation was not performed or offered until the motion for reconsideration and that the plaintiff's myth that there is no peer reviewed or published study even attempting to measure risk from somebody who's driving into an area and then driving out even on a regular basis now under that scenario the motion for reconsideration is definitely reviewed under a motion under an abuse of discretion standard the court the nad it in no be use of discretion has been shown nor could it be shown because as it turns out mr see hafer doesn't even satisfy the conditions set up by the plaintiffs experts now it's a little bit different analysis for mister but it's essentially the same thing that the district court said look there can't we can't say every exposure is enough to satisfy the requirements even the plaintiffs agree with that so the court applied the plaintiff's own experts met of methodology and said you can't even give me a scientific basis for finding that these people had sufficient exposure to asbestos in particular there was no evidence that mrs mason folds father worked with asbestos and there was no evidence that mrs choi those husbands work with as best and it's not good enough just to say they were in the plant some point doing whatever it is they were doing you had to show something the plane is needed to come with something to be able to say well they're within the zone of danger and of course the daughter only the issue believe in the answer your question is yes and the reason i'm say i say that is this there is are or was a huge dispute in this case as to whether or not the every exposure every fiber cumulative exposure type of testimony would fly the law is building in this circuit and elsewhere that that's not going to be good enough and the plaintiffs said they were distancing themselves from that however when you look at their experts testimony it appears it collapses into every  exposure every fiber and cumulative exposure type testimony the district court explained his in his opinion that the there must be something to did to demonstrate the significance of an exposure such that it could be a substantial calls and the court looked to the plaintiff's experts in his opinion to to discern what that  significant exposure must be and it had to be something other than every five or so you think a fair reading of the record and supports that is reasoning is is apparent yes further something along that line because it seems that you've seen and to everybody here that yes these call eight hundred number if you have this disease yes your honor and apparently what goes on with that is when you find someone with that disease you mean somebody lawyer who were added to it says they have to trace back and i wonder if there are any when they trace back they can't find an employer for instance i grew up on a farm and you know i don't know what they're in some of those old buildings that were torn down and where is best of us comes in and in a lot of products maybe something fell off of a truck and somebody was exposed to it in never paid any attention to it until twenty years later when they got this disease are there any dead in diseases when they do that kind of advertising and we've studied a lot about this we can't find a source gets there if there is something where there is no apparent source nobody can find a source that is that can be blamed for a disease obviously those aren't these cases because these people at decades of exposure you know but they know they have a source that's who it's going into that's way that's why i'm mostly curious about it is when you it seems that when advertise for something like this and lawyers do you know personal injury lawyers they do things like that and would come up with a dead end definitely has a disease and they don't know where they got it twenty or thirty years ago i don't watch it if they don't know it's all right i know that maybe they're all right there are cases where and that's usually disputed because in the adversarial illinois scenario judge that what we're asking for here is not a final finding me this came up on a motion to dismiss the trial court all we're asking for on owens illinois is that this case be set back for development of a proper record on the public policy questions and in that regards the alvarado case was one case we didn't mention in our brief i wanted to point that out now this is wisconsin supreme court decision two thousand and three wisconsin w i fifty five and in next case the court said in most cases this paragraph eighteen of that decision in most cases the better practice is to submit the case to the jury before determining whether public policy considerations preclude liability only in cases where the facts are simple and there's no disputed facts should the determinations be made at the at the twelve b six stage were ask case that's not in your briefs it's it wasn't cited in our brief we had something similar on this on this same point about the finding of public policy in wisconsin but i wanted to add that that case we really do require that you notice in the summer context of a patent of but it wasn't no it wasn't a patent but it was it's a statement of how wisconsin courts view the question of determining negligence responsibility yeah people knew it was forseeable that debt design would release fibers into the air so with that with that knowledge and that and that statement of foreseeable harm and there's nothing in the public policy of wisconsin that would say in any decision that you you would have no liability in that scenario that doesn't mean there is but that means it should go forward for further discovery well maybe two or three with his deriving that we're not really so we don't really have a lot of thirty along those lines we don't have a lot of case law discussing a purely patent law right but this case really isn't about patent law it's about the negligence of the design and that's that case law has been overruled been established many times that designers have effectively the same responsibilities manufacturers when they have this foreseeable knowledge of the harm and we have a a toxin year that's killing people and one nine hundred forty seven wisconsin head had law saying that was that asbestos was a toxic substance that would kill people that's beef that's eight years before this patent was licensed so what we really have here we're not questioning the patent ownership rights which is what patent laws about what we're questioning is if you do own a patent what is your safety responsibilities when you make money from licensing that patent and that's no different than when you make money from selling the product you put warnings out with you could put a warning in your patent we could do a lot of things arise that simply would describe you could you could put a warning in your patent you could put a warning in the contract when you license the patent there's all kinds of ways to put warnings out and that's the point is that question should go for further evaluation as to whether there was a public policy that you don't have to put warnings on pipes that's the point is is is there something here we don't know because it wasn't in the record but wisconsin law requires further development and that's that's what's missing here so we're asking for remained to develop that record just like your honor asked about would when it's appropriate to put warnings on substances and i would add that would that would be something above and beyond most patterns it might it might be i wouldn't say that it needed to be in the past i'm saying it could be in the contract when you license so but for instance we have doesn't stop again the question of negligence in wisconsin law where you presume that you're liable and responsible to the world and you have to get to the public policy issues that were developed in the record below you could have a shell company that just don't pat and has no liability that's the point that's the other side of the public policy you could protect any patent holder just by from the manufacturer just by creating a shell company that licenses the pads i want to just add one more thing to my time's up in  to again judge connelly did not find at the workers comp act in wisconsin bar all the claims he only found at the household planes were barred and there's no case in wisconsin where an  employee who is not performing their work duties is held to have a worker's comp remedy that should not be extended under wisconsin lot to non employment situations these household activities had to occur they were work activities there's no rules about laundry clothes that would dictate any involvement in good before you sit down i want to discuss this is a serious case but i want to make a comment about yours to figure compliance with the type and volume limitation in your brief you indicate you certify how many words it was but let me give  example of your record citation there's a four line record citation that counts as one word the way you set it out no spaces rather it would have been sixty eight words have been space properly not been forthright and how you certified this i certainly apologize your honor for for our citation formats and we did move for additional words on this briefing because it was six i know you did but we added we also fudged it when you when it came to actually topic but that's all i had it's a comment it's a serious case but i'm telling you you're certainly could be somebody to sanctions for but nevertheless that's it's not that we don't notice those things and it does have an impact on how we view your case so i would suggest in the future you not do that that's all i understand y