important one the most important one relates to burden of proof and interpretation of a statute regulation specifically thirty c f r five thousand and ten dollars b and the statute upon which it's based thirty u s code eight that's the regulatory focus right now the provision yes your honor and but but what the commission has held is that that that the whether to go on that regulation is triggered by an stick with me your assertion is to carry that burden the secretary had to have a doctor come in and testify or something like that medical evidence and somebody had to come in with medical training and say i don't like it when it doesn't allow you to cross examine the witness but in cases up till this point up till this case the secretary always presented somebody whether it's a paramedic or an e m t or a doctor for they had got would agree that he was in between two pieces of equipment and they came together and he was hurt and well down the you know you can dance around language but he got he was in fact  touch the rail car rolled into him and you get five tons against ten times any human being in between you wouldn't call that a crush or a smash well that's just that he was he was kind of caught like finger in a door jam a little bit of a pinch now i'm not saying that your i mean what happened is the chain cocked the call this is significant because you want to stay away from map because it's a piece of evidence you don't like but it's real isn't it i mean it happened didn't i don't i want to stay away from that i think that that's a fact  smith noticed that the concerns got a distended amp the man's getting hard and they suspect internal bleeding right both of them both of them did see that and they both said that that could turn bleeding might not be could be other thing could be muscle problems but could be they thought it could be internal bleeding and they both acknowledge that could be life threatening right they they acknowledge that internal bleeding can be life threatening no one ever asked them if this internal bleeding was life threatening well let's just stick with the logic here if they see it they see it happening on the scene and they think this could be internal bleeding you do you think they were thinking but not in term bleeding that would threaten this guy's life i mean they both said internal bleeding could be life threatening we thought this guy might have had internal bleeding right mr your arm mr macdonald specifically we're back question do you believe that the injury had a reasonable thing for a cause of death i'm aware of that and that came later i'm just asking you a real straightforward question they both saw the stomach they it getting hard distended they both thought there could be internal bleeding he had knowledge that they both thought it it's possible that it would be internal bleeding and they both acknowledge an internal bleeding can be fatal right depending on the type of internal bleeding but and by life flight is that accurate he said he went by ambulance and they transferred him i believe they transfer him to a life flight about midway because they couldn't fly because it was foggy and i think they did so that's not real clear we don't actually have any medical records for the day of the event  standards are of you here's stansell evidence standard i'm very surprised you're fighting on these facts i took your position to be a legal position that this is based on ex post medical evidence but that's very surprising because this is basically a tort and we're hearing tort law all do we look x post at what experts say as opposed to this knew or should have known i took a position to have to in fact be an accident but then why do we have this language about reasonable potential to cause death based on something you're supposed to be assessing within fifteen minutes you're not saying there has to be a medical pro at the mine in those fifteen minutes so what are we supposed to be using hindsight here is that your position well you are my position make everything better now you're i mean what i'm saying is that the statute and the regulation whether whether the commission wants to find it or not it has an element that the secretary must prove and that is that the injuries in fact have a reasonable potential to cause death but is that measured at the time that the layman is seeing him at the cole or is that measured after the fact based on all the x rays that come out later what's your position m your honor is that at the time by a layman or afterwards by an expert to the option for purposes of improving that we've gone leave the scene and they must present evidence as a matter of fact and that's after but as far as whether or not we violate the rd element of the offense which is report within fifteen minutes of when you realize or know or should have known that there's an of an injury with riddle then for cause death as far as that rd element goes that that is based on what  what other body of all depends upon an ex post assessment what other tort even penal tort depends on an ex post assessment or whether in fact the person was going to die based rather than what it looked like you are i didn't write the state in the it is your position is very that i think that yeah you believe there is an obligation to bring in medical evidence after the fact and judge your liability under this regulatory regime based on that exp what they are they were meant they came in the aftermath of three fatal accidents are meant to remedy a problem right it's a safety related accident how do i get how do we get from remedial based on our own precedent remedial legislation to given broad scope to your view which is you've got to look at this really narrowly but you are my concern is that in this case or in any of these cases in the statute if you apply the commission's rule you could find somebody that they violated this standard even if there was no reasonable chance for a cough that you could find the mean if you follow the judge it after the fact right hard i mean that's only if you look at it after the fact if they if you apply the standard the way they're describing it to us you could have somebody who looked on the scene like they were going to expire and afterwards you discover oh there are those signs and signals you misinterpreted them but it's only by looking at it after the fact that you get to the concern you've got correct well no your honor but what do you make of the fact the console terms injury is a high probability cause death and five on that zero to five scale your honor they did not rank the injury they rank the accident and that's what the judge and the secretary kept confusing during the hearing mr marlowe testified that that was that sheet was ranking the accidents and how likely they might cause a death or serious injury for example there was a guy that got out of his current rolled down hill they ranked it as a four but he only had talking about the injury not having been right that's serious but it's the injury that has the knew or should have known applied to it it's the accident that is the basis for objective argument but that the accident that's used in the r p i that's an internal document who fall they weren't attempting to apply the terms of art that are used in the mind act they were just basically saying this is an accident if you repeat this over time somebody get killed well but so it's an accident that  and it meets the definition you don't you think that the internal definition is substantially broader than the mind acts definition of an accident is something that has this potential likelihood and you just said if you repeat it over time some people are go if you repeatedly run the ten ton in a five ton against each other like you don't want to be in the middle of that so then why isn't the nd element that you articulated satisfied even if it is a discrete element you are because they were they had no intention of that being where where what you're saying is they needed something expert they needed somebody with call medical qualifications to say in my opinion it has a reasonable dental called death and the o'jays when this standard st came out hopefully it will help with that when you say this is the very saying that the immediate miss of an operator's notification under section five that must be evaluated on a case by case basis taking the company tour of the accident all relevant variables affecting reaction or reporting fifteen minute period how could it possibly mean you have fifteen minutes to look at the totality of circumstances and make a decision but we'll decide later whether your fifteen minutes was right or wrong they're talking about the fifteen minutes aren't they they i think they probably are there i believe you don't happen to think it you know they're saying that the immediacy this of an operator's notification must be evaluated they're talking about that fifteen minute window as element three after element to your own let's ask about this so maybe we can look at this in a way the point of this statute is to require and encourage mine operators to report serious accidents probably right it is wrong and to do that you tell them they should and then you you penalize them you pose a far in when they don't so that they will do that right the group so what would the point be and having a standard that wasn't fundamentally about whether the mine act or the mine operator behaved well or badly in those fifteen minutes what's the point in limiting it to the ok you get out from under the this penalty if it what is it in the text that you think gives you a leg up or a hole for saying yes it's right and proper to ignore what happens in the fifteen minutes and pay attention to the medical evidence later i'm not anyway s ready what happens in the st fifteen minutes what i'm saying is that the secretary if they're going to approve a penal statute the st thing they have to do ready is prove that there was a reasonable potential to cause death and that's not new they all dates help them to this standard for years if not decades and then then  start to change and they start to conflate the rd element with the nd element it used to be when the stand down st came out in she would go in and they would try to go with this type that not to tell you they would go with basically the facts and the judge would say well we're some through the roll or the other words could have looked at the circumstances that knowledge alone would have alerted to the severity x and the potential for death in other words that's the penn circuit saying you don't need somebody to come in and say hey if you're crushed between two rollers that's really severe and that could sensibly penchant for death you don't need a doctor to come in and say get crushed between rollers is really really bad for you what you want with the ten circuitries well in that case your honor if i recall that case correctly the well ahead  mitch misshapen head and in that case what happened was i think they might have relied on the cougar whole case which adopted some of these per se categories of injuries that that don't require the secretary to prove reeves will potential group there's nothing about cougar cole what i've just read to you this is this is a language from the pen circuit saying what i think ought to be obvious which is some things are just so bad you don't need somebody who's a quote ex say they you know this is unprecedented i'm reading to you from a case from the th circuit where they say in effect you don't need an expert to tell you something which is obvious you get your head cut the roller that can kill you what's wrong with that death is making a reference to mr of bieda di you just think that's not good law not what i'm saying or are is i think this is an injury based standard and maybe it wasn't raised to the th circuit like i'm raising it here perhaps they didn't argue that there's a free element past you know i don't know what went into that i mean i i can't say that i think there's three elements here and i think unless you get past the nd one you don't even you don't get to the rd one and you don't then you don't haycock rollers and it's real obvious to anybody that you get your head pinched and it comes out of a shape in that you know your skull was crushed you could be dead i think their position could be and what i'm hoping you will  that you really need to have it's not inappropriate they should be able to say when when things are unclear during that fifteen minutes you can bring in evidence later congress were rightly alarmed that their mine operators out there who were not calling in to let them should know that there was an accident and that's all a given we understand that but so your honor subsequent accident it has the potential to cause that after two thousand and six after those hideous mine accidents they included redundant language it's not on the fifteen minutes it's at once it's the mediate actual accident has to have in fact had a reasonable probability ready of injury so how do we operationalize that i mean this is are they right that there's a burden of proof on you to come forward with medical evidence or is it enough for them to have the opportunity to rebut it i'm up more heroic and if there's medical evidence that could be having fifteen minutes absolutely congress stiffing you have fifteen minutes for the common target during the miner act so it's about an hour talk about thirty minutes and they said absolutely not it's a drop their number of fifteen minutes because it's fifteen minutes not good this twenty minutes at the medical evidence when it supports you and you tell the courts to ignore ready it you ignore it when it doesn't work well i really don't have a situation where things were chaotic at the scene but things are always chaotic around an accident so if the definition is chaos at the scene i'm i'm clear on that i'm going to get you to meet your have are series are great records argument is the government is asking you to accept the standard where they get to bring in medical evidence when it's good for them and they get to tell the courts you must ignore it when they don't like it that's the position they're taking and in fact you're acknowledging here that your argument is who could have known in that fifteen minutes so don't worry about that later evidence will look you know it's not like the judge and the commission argue that this case in the st fifteen minutes was so strong this guy was screaming he's lucky to probably to be alive rip to these two he was because the equipment could have been cut in half thank god he wasn't he might be right on these facts but your regulatory position is pretty aggressive now this is not the adversary but in different case it could make a difference that the statute says the person has to actually realize but the reg says if he knew or should have known that's enough so you're really taking an aggressive position of expanding the statute beyond what the mine operator realizes or is aware of what you're on and there were people there who knew and should have known that in this case there are people there  like this and you're not sure err on the side of a cup of coffee it's not a long standing is that interpretation of the air on the side of of reporting because that's one of your one of your points but is that is that well established yes your honor where should we look for the i think signal ok if that's if that's so make sure your colleagues concern expressed repeatedly in the briefing that puts the burden of proof on its head by presuming that anything that's questionable requires reporting you in effect but the burden of proof on the mine operators when the burden is supposed to  your honor it's i think this is a simple request it's simple somebody is injured call within fifteen minutes and in this case your honor i'm on telly but i'm trying to ask a technical o ok skip the technical point i'm trying to answer is this they say as a matter of law you're asking us to impose what amounts to a presumption of presumption that if there's a question you have to call it in other words all doubts are resolved against the mine operator they say that effectively turns the burden of proof which the law says is supposed to be on the government on its head what's you big knowledge here that the government's position is whenever it's questionable whether to call the obligation is to call right that's the government's position and in fact liability will be imposed if a call isn't made under those circumstances their argument is if it is the government's burden to prove that we should have called and every time there's a question about whether to call they can say you should have called that amounts to a presumption against us and puts us through the burden of proof of showing we shouldn't have called when in fact it's your burden to prove we should have called so your government position turns the burden of proof back on the mine operator when it's supposed to be carried by the government i think that would be their position mr hugh can correct me if i'm wrong i'm trying to get you to meet that argument and xplain why it's  rather than i'm trying to concentrate on this case and these facts are we have to look beyond this case i understand it your honor but but i think you when it comes to reporting a notification to   that the factors going to this case prove that these people are this minute that this isn't this minor had the possibility of dying he did die to put that we're grateful but just look at the evidence or are you are you saying that a way we could approach this case is to say there's a dispute about whether this puts the burden of proof but we don't have to worry about it in this case because even under the most generous view of this from their perspective it still i would i would say that's a correct statement here on this this this was not a small injury this guy was a somebody who was there with sponsible person at nine thousand nine hundred feet of where this accident occurred and just go on he was tree and he knew he knew distended stomach he knew all of these things he called  life like when when mr smith came on board with this accident happened four years after shannon smit so you're going to you're in a should have known peace here because mr mchugh says i didn't think it was life threatening and your position essentially is well you should have known it was life threatening ok that puts us right into the zone of asking whether you've gone beyond the statute and here committed to do it because this has been argued by your opponent the statute says realizes which one could say is just a historical fact you knew you should that and the regulation which goes beyond now and says should happen now so we're back to judge people says question are you allowed to do that are you allowed to take a statutory supervisors who used this exact kind of a case as a matter of fact their own grow she was there teaching up material use this case the starn case as an issue that should never have happened because this is one of them here we're in another posture where from the government's perspective fact the commission did do this i take it you're suggesting we do it too and say well you know should have known we don't have to get into that because here they knew they i think you are  interpretation is that in response to but the question is very aggressive here because basically what are you ever preserve that record i have shipped to me here i've not seen an argument of obstruction between the other point is the thing about shifting the burden the court was talking about that's just one symptom of how the commission in the old days they always leave these things like another one is you can't wait for clinical proof in order to make your decision yeah but how how how could it be workable otherwise right how could there how could they affect you a there would be a purpose because clearly had unless they took the position that you should err on the side of all if you're not admonition if you get past the nd element obviously and you make a wrong call on the rd element you're going to be held accountable for a belt so it's kind of an admonition report more often than not but that doesn't mean you're guilty of a citation  elements and then if there is no deference then then in this case as the court was asking about then you look at whether or not the judge's reading is consistent with the plain meaning of the stack of the statute and it's not but your focus has any meaning of regulation