first issue i would like to address this court you raised in the brief is the issue of plaintiff's exposure at the in article and why the work of the court excluded any evidence you'll never guess that came into this case mr smith suppose or was he worked in that in the yard outside at the level that he worked in the wheel shop for about a year and that he never remember ever working with its best was at any time he was at the rear of the important to the evidence that was smooth it was that he was exposed heavily insufficient while he was acting arco he worked there three months but you gotta remember what they're talking about here is they're saying the road is is negligent or just to mr smith's atmosphere several hundred feet from plant but are excluding when mr smith is dead in the and i thought so if i'm recalling correctly there was something in the briefs about the court excluding that because of other things that it would lead to so i'm wondering what that and the other question is whether or not there was any alternative proposed to the court how that evidence might come in and that address the concerns that the court had unfortunately from the record i'm not i have not been able narco as a party and tell the jerk that they should not fight against us and they should find against you narco even though they're not present i assume that was for concern because that's the concern that discussed in the case law especially the this case and we look at gnome we point this reed known as if you don't have an expert to say that the disease process exists and was caused by the other exposure you don't get to put on the  broadly excluded out yes and what no one said is that's wrong this evidence should come in and this idea that you're going to expand this rule make it even more broad to exclude evidence is improper and if it's all evidence comes in and i think it's quite clear when discussing the case in this finding in overrules that case where it says if you have a reasonable alternative explanation for the disease then that's all you need then the evidence pursue this so products for a cause problems are actually based on a long history i think it's reflected in the record this is not the first case like that that came about and of course the problem with the with the court's  that's not known so no one is a what do you think now and so i think when no one says it is we have this this rule this lippy rule that the courts have misinterpreted as saying when you have an alternat exposure unless you can show that that soldier all by itself caused it then the evidence is excluded no one came back and said that's wrong it said yeah you're going to try to use the evidence for the purpose of showing that there's another tortfeasor joint parkies or that's what but if you're going to show us that the purpose that so proximate cause is the issue then it comes in and in that case there was an expert some discussions about the type of th record the actual positions rather than some guy testifying who showed up and years later about what missions he and we had other experts who said yes he had something on his lawn that might be caused b no condition other than to accept that the the condition itself was caused by your exposure and we see that in plaintiff's opening when he lists all the various places the person works and omits your a having another burden on them besides relying on the discovery and idiocies and seal of supplement but the relic attitude was monitor other defendants requests for records and even if those records weren't file weren't given and weren't even on dr ginsburg but in a different place where they had heard that the railroad had to somehow for some reason follow up on these requests from honey and there is no duty anywhere in the law document that says i want the records from a place where we already have records from you knew it wasn't a new place but but we've already had the records from two thousand and seven two thousand and eight and honeywell does a request saying give me all your medical records at this time and apparently the person produces the documents to them because honeywell cancels the deposition and those that's what's up record played out of his brief no indicates that yeah i got the records from honeywell or at the deposition or at that so the affirmative defense we also follow from a defense for mr smith's smoking mr smith was a smoker mr smith had shortness of breath and sometimes some limitations leprosy and the persons one of his complaints is yes balls on the base if the plaintiff did something else through his negligence that caused what was on his face and you could distinguish between the two then contributory negligence w would come into play because the actual diagnosis that's the hostess isn't what's important here no one was awarded damages for asbestosis people were awarded damages for pain and suffering and loss of a normal life in shortness of breath argument from the damages yes there if you can't differentiate between what part of the shortness of breath was tossed by by smoking and what part was caused by it's best this when you can't have a division of the injury you can't have an  abortion that that's not committed under you so what you can do is if the point that was negligent in causing that problem or contributing to it you can focus on the point of statement because that makes them the joint tortfeasor in causing the very he was treating him back in two thousand by this case was filed we disclosed it treaters testified we got the records the road claims it didn't get notice of two different record depositions so all the that honeywell claimed it supplied in the records it was twenty seven days before the october trial setting yes word was tendered for deposition and he gave one october eighth and if we were here from the october bertie the road might say well look the time was october eighth the trial didn't start until mid january so the records at that point they've had them were months they had the post yes for more than three months before the start of trial that was started in january and they say but in their briefs they say talk about it hoping they got the question to her it is worth about two to the jury on causation and damages so in terms of mitigating damages in terms of trying to say that the shortness of breath was due to the smoking you know it was all there they could say in fact they have four retained experts who are mentioned all that much in their brief for between experts who said jim didn't have asbestosis all his day and we just were due to smoking and that's what they are you to the jury they didn't have asbestos from the opening statement by actually by myself i think i mentioned that he smoked but smoking doesn't cause i suppose toasts they mention in their opening and that was basically one of their their row positions with the jury this man smoking three months when i look it up twice last night thinking maybe my eyes are open it's in there he said a few months a page eighteen i guess that's at least two i'd say at least two and have been for you is this three i'm not sure you know offer proof by counsel how long did mr smith work there a couple months a model no he worked there is he said a little less than one year they went right on without so their expert thinks he was there for about a year putting thread into a machine and he remembered it was located near the office so there's no suggestions record that he was unloading the box cars even ross festus shoveling the ground up a spouse was not in the pipe coverage and when they got that right you'll get some exposure there but not every job was equal in the plant in other words i realize there were jobs where you unloaded boxcars and open the bags and put them into the theaters at least in the building and snow did any of that all we have this record is the only thing he remembers from the retirees putting thread into a machine that made rope and they didn't my point didn't last industrial hygiene as the industrial hygiene is who gives us opinion number one then you get to the issue is is the jury going to determine which is the cause does a juror make that determination between two exposure exist as to what is cause and i suggest no one actually stands for the premise that you can get competent evidence from laypeople about exposure but in terms of saying that exposure is enough that is the sole cause of this disease and not the other one and that's what we have experts for and that's why nolan to forty two they talk about you can introduce co evidence about others as causal factors the conduct of another causative factor and that's a think of poor work forty three or forty two and four forty three and of course unknown and that's exactly what they had the guy worked with while mclean boilers on occasion he also worked with insulation and dr sawyer testified in locker approved the insulation was the cause of the sole cause of man's disease who said that in this record they say they got a so proximate record even from the office of group and number two they had no one who would say i'm qualified to give opinions on causation in my opinion the sole proximate cause was his exposure that he talked about in his discovery deposition in ar basically to me the crux of it was anyone over there is going to be exposed to the point that they could become ill because of the nature of it flowing from and the dow circulating within a mile videos played and never even asked his people so it doesn't have to be from news experts has got to be somebody that's not in this record massive exposures differs from one to one to the other and i have a yeah i say everybody in the plant you were able to put that in as evidence of an unsafe workplace right but yet they were prohibited from having any testimony that he actually worked inside that plant that for three months or two months or a head anybody said that was the sole cause i w no idea but he says specifically that approximate cost could very well be an article then we have a nother expert and industrial hygenic specific and based upon the document signed provide not only be nice to have a it would have been nice to have an opportunity in front of the jury to argue whether it's two months or three months or a little bit less than one year and what a discovery deposition said in one of the medical records said and what the said various times we don't get that opportunity it was the evidence was excluded what dr what mr a model said specifically was that the dose received at the red based upon the information that he was provided depositions records etc was insufficient to cause exposure from hundreds of feet away from a plant is greater then the exposure from being right inside is