[00:00:00] Speaker 01:
We will hear argument next in number 24-1198, Lobo against Department of Justice.

[00:00:07] Speaker 01:
Mr. Collins.

[00:00:09] Speaker 04:
Thank you, Your Honor.

[00:00:11] Speaker 04:
May it please the court?

[00:00:11] Speaker 04:
My name is Brian Collins.

[00:00:16] Speaker 04:
I don't speak very often, so I'm nervous.

[00:00:20] Speaker 01:
That's OK.

[00:00:21] Speaker 01:
I guess I want to try to.

[00:00:23] Speaker 01:
ask you about some things that are at least important at the moment in my thinking.

[00:00:30] Speaker 01:
One just factual thing.

[00:00:32] Speaker 01:
Two different jail or detention centers are mentioned in the record.

[00:00:39] Speaker 01:
Which one was your client working at

[00:00:44] Speaker 01:
in and around January of 2010 when he first became ill?

[00:00:51] Speaker 01:
Both.

[00:00:51] Speaker 01:
Both.

[00:00:52] Speaker 01:
OK.

[00:00:52] Speaker 01:
OK.

[00:00:53] Speaker 01:
So now I'm just going to use the plural and call them jails, even though one is called the detention center.

[00:01:00] Speaker 01:
I do have an important factual question I want to get an answer to.

[00:01:08] Speaker 01:
Pretty early in getting

[00:01:13] Speaker 01:
into this case, the question occurred to me.

[00:01:19] Speaker 01:
Why don't we have the health records from the jail centers, not Mr. Lobo's health records, the overall population health records?

[00:01:29] Speaker 01:
It would seem on its face to make it to be highly relevant to answering the only question here, which is where did this bacteria

[00:01:44] Speaker 01:
Where did he get the pneumonia?

[00:01:48] Speaker 01:
To know whether, for example, others in the two jails at the relevant time are recorded in the jail's records as having pneumonia or not.

[00:02:03] Speaker 01:
I look at the statute, and Section 102-88 directs the Bureau

[00:02:10] Speaker 01:
to expeditiously attempt to obtain the information and documentation necessary that feels like it might be very, very important, including subpoenas to third parties like public agencies.

[00:02:26] Speaker 01:
So just as a factual matter for the moment, I want to understand, did either you

[00:02:33] Speaker 01:
or the government try to get this information and met with no success, or did nobody try, or what?

[00:02:42] Speaker 01:
This is very much on my mind.

[00:02:46] Speaker 04:
Well, I don't want to say we didn't try, but we didn't try.

[00:02:50] Speaker 04:
We didn't get that information because it's not collected.

[00:02:54] Speaker 01:
What is collected?

[00:02:55] Speaker 01:
It's not collected, really?

[00:02:56] Speaker 01:
The jail doesn't keep records of illnesses in its facility?

[00:03:02] Speaker 04:
This is a highly transportable jail.

[00:03:04] Speaker 04:
They have 90 beds, but they rotate people in and out all day long in many different shifts.

[00:03:11] Speaker 04:
Because of overcrowding in the California prison system, convicts have been released back to their local jails.

[00:03:19] Speaker 04:
So they have those prison population in the jail.

[00:03:23] Speaker 02:
Is that the case for both jails?

[00:03:25] Speaker 04:
Yes.

[00:03:27] Speaker 04:
They also, well, I'm not sure about the one jail's population.

[00:03:32] Speaker 04:
The other jail has 90 beds.

[00:03:35] Speaker 04:
But they rotate people.

[00:03:35] Speaker 02:
But I mean, in terms of rotating in and out all day long, no one stays there for more than a couple days?

[00:03:41] Speaker 04:
Correct.

[00:03:42] Speaker 04:
Correct.

[00:03:42] Speaker 02:
Both of them are like that?

[00:03:44] Speaker 04:
They put them on buses and drive them around the county because of the overcrowding situation.

[00:03:50] Speaker 04:
Getting back to your question, there is a nurse who does an intake on people coming in.

[00:03:56] Speaker 04:
But it's simple.

[00:03:58] Speaker 04:
Are you injured?

[00:03:59] Speaker 04:
Yes or no.

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What's your injury?

[00:04:01] Speaker 04:
Whatever it is, she notes it.

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The other question, do you have tuberculosis?

[00:04:07] Speaker 04:
That's it.

[00:04:08] Speaker 04:
So no, we didn't reach in and try to find these records.

[00:04:11] Speaker 04:
I'm not sure they'd be available to us.

[00:04:14] Speaker 04:
But that's the answer.

[00:04:17] Speaker 01:
It seems from the statute that they would be available to the Justice Department, if only by subpoena.

[00:04:22] Speaker 01:
It could be.

[00:04:23] Speaker 01:
It could be.

[00:04:25] Speaker 01:
OK.

[00:04:26] Speaker 01:
So the issues that you raise here, there's obviously no dispute about severe total disability from the pneumonia.

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And the only question, but it is an essential question, is where did the pneumonia come from?

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Whether it was at work?

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or from somewhere else.

[00:04:49] Speaker 01:
And do I understand the record right to be basically this?

[00:04:53] Speaker 01:
Your expert, Dr. Hyman, says more likely than not, it came from the jail.

[00:04:59] Speaker 01:
And the government's two experts, Mr. Epgen and Dr. Diaz, or maybe they're both doctors, right?

[00:05:10] Speaker 01:
Dr. Diaz and Epgen said, I don't know.

[00:05:15] Speaker 01:
They didn't actually say, I think it's more likely that it came from outside the jails.

[00:05:21] Speaker 01:
They said, don't know, with at least Dr. Diaz saying these particular jails were not overcrowded.

[00:05:30] Speaker 01:
And so at least the literature on overcrowded jails as being

[00:05:35] Speaker 01:
unusually bad Petri dishes doesn't apply here.

[00:05:43] Speaker 01:
Is that kind of the state of the record?

[00:05:44] Speaker 04:
I agree with you because you're right.

[00:05:49] Speaker 04:
Dr. Etgen, his report is a preliminary report.

[00:05:55] Speaker 04:
Three times he says it's preliminary.

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It's a page and a half long.

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There's over 10,000 pages of records on this particular case.

[00:06:04] Speaker 04:
His report doesn't review any of Dr. Hyman's reports, doesn't review anything from the San Bernardino County Employee Retirement Association.

[00:06:13] Speaker 04:
disability retirement, the WCAV stipulation, but he didn't review any of that.

[00:06:20] Speaker 04:
But he did say his file was devoid of information which would indicate it was industrial.

[00:06:28] Speaker 04:
Well, all of those documents indicate it is industrial.

[00:06:32] Speaker 04:
So he either didn't review them or he didn't get those records.

[00:06:36] Speaker 04:
And it is preliminary, not a final report.

[00:06:39] Speaker 01:
Right.

[00:06:40] Speaker 01:
But on the question of origin in the jail, I guess, my recollection is this, that the various legal conclusions that were drawn under a California regime in which

[00:06:51] Speaker 01:
By statute, pneumonia is presumed for people like your client, Felice and others, to come from work.

[00:07:02] Speaker 01:
And so no independent determination of causation on that point needed to be made.

[00:07:10] Speaker 01:
And so one has to look down to the next level of the actual evidence on the point.

[00:07:17] Speaker 01:
I guess I'm remembering, and you correct me if I'm wrong, comes down to Dr. Hyman's assessment referring not just to overcrowding studies, but other medical literature, which we have not been given in the Joint Appendix about prisons and other prison-like facilities like jails, being higher risk than, for example,

[00:07:43] Speaker 01:
the outpatient clinics where I guess Mr. Lobo went two times between January and the April 2010 hospitalization.

[00:07:56] Speaker 01:
Correct.

[00:07:56] Speaker 04:
Much of what Dr. Hyman wrote about is that in the prison setting, as a jailer, he has to have contact with certain prisoners on a regular basis.

[00:08:08] Speaker 04:
People come in looking for a fight.

[00:08:10] Speaker 04:
People come in at their worst moments.

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They have to be directed physically.

[00:08:14] Speaker 04:
That's physical contact that's going to get you in contact with somebody that has pneumonia.

[00:08:20] Speaker 04:
Many people have the pneumonia bacteria, but they don't know it.

[00:08:24] Speaker 04:
Their symptoms are relatively mild.

[00:08:27] Speaker 04:
I mean, you know COVID.

[00:08:29] Speaker 04:
You've had people affected by COVID.

[00:08:31] Speaker 04:
People died from COVID.

[00:08:34] Speaker 01:
Is Dr. Hyman referred, if I remember right, to, he cited

[00:08:39] Speaker 01:
four pieces of medical literature.

[00:08:42] Speaker 01:
I forget exactly where that is in the appendix, actually.

[00:08:49] Speaker 01:
I don't know where it is.

[00:08:50] Speaker 01:
585, 585 of the appendix, his evidence log,

[00:08:57] Speaker 01:
lists article infection control in jails and prisons from 2015 overcrowding leads to pneumonia in 1994 overcrowding forces jails to release inmates 2011 and prisons as incubators and spreaders of disease from 2007 we haven't been given those articles two of them at least by title are about overcrowding and

[00:09:23] Speaker 01:
And we don't really know here that these jails were overcrowded.

[00:09:34] Speaker 01:
I think Dr. Hyman said in his deposition that the literature is not limited to overcrowded.

[00:09:45] Speaker 01:
facilities, but prisons and jails more generally.

[00:09:51] Speaker 01:
What if anything can you tell us about that literature?

[00:09:58] Speaker 01:
The reason I mentioned is Dr. Diaz in his reports concentrated, I mean actually not concentrated, addressed only the overcrowding issue and said

[00:10:10] Speaker 01:
Well, there would be less of a risk if a jail was not overcrowded full stop without saying, well, is there still more of a risk than going to the urgent care clinic?

[00:10:20] Speaker 01:
He never says anything about that.

[00:10:23] Speaker 04:
Dr. Diaz says essentially it was in deeper likelihood that he would have had the exposure

[00:10:32] Speaker 01:
in the jail as in the general public.

[00:10:36] Speaker 01:
I'm not actually sure he said that.

[00:10:38] Speaker 01:
I mean, literally, I'm not sure.

[00:10:40] Speaker 01:
I know the government says he said that.

[00:10:43] Speaker 01:
I couldn't quite pinpoint it.

[00:10:46] Speaker 01:
The part of his report where he used the language, or a part where he used the language of equal likelihood, was equal likelihood between aspiration and inhalation, which I did not understand to be the same as in the jail or out in the wilds.

[00:11:04] Speaker 01:
Let me see if I can find it.

[00:11:06] Speaker 01:
Well, Dr. Diaz is, I guess what I'm thinking of is on page 626, I think.

[00:11:23] Speaker ?:
Great.

[00:11:25] Speaker 04:
at likely risk of acquiring severe espionage cap by either aspiration or inflation, whose cap condition may not have been 100% industrially related as asserted by Dr. Heine.

[00:11:39] Speaker 01:
Right, but I don't see where he said, though I think the government suggests that he said, and so I'd like to find it if it's

[00:11:48] Speaker 01:
if he did say it, that he thought it was equally likely, equally likely that Mr. Lobo got this from the jails or from somewhere outside the jails.

[00:11:59] Speaker 04:
That would be on six, two, three.

[00:12:04] Speaker 04:
Fourth paragraph, Dean and Dr. Mr. Lado could have been exposed to pneumonia either by contact with infected asymptomatic inmates at the jail facilities or by contact with infected patients.

[00:12:20] Speaker 01:
especially children and adolescents.

[00:12:22] Speaker 01:
Right.

[00:12:23] Speaker 01:
Right.

[00:12:23] Speaker 01:
But I'm just, I mean, this at least is, I think, helpful to you.

[00:12:28] Speaker 01:
This does not say that it's equally likely.

[00:12:31] Speaker 01:
He just said it could have happened either place.

[00:12:33] Speaker 01:
Yes.

[00:12:34] Speaker 01:
And he used could have or may have, I don't know, half a dozen times throughout his report.

[00:12:40] Speaker 01:
He did.

[00:12:40] Speaker 01:
He did.

[00:12:42] Speaker 04:
It's, you've got Dr. Oljan saying files devoid of evidence.

[00:12:50] Speaker 04:
There's no foundation for his opinion.

[00:12:53] Speaker 04:
You've got Dr. Diaz saying, maybe it's industrial, maybe it's not.

[00:12:59] Speaker 04:
And you've got Dr. Hyman saying, this is work related.

[00:13:02] Speaker 04:
This is due to the industrial environment.

[00:13:06] Speaker 04:
And I know you mentioned

[00:13:07] Speaker 04:
California, labor code 3212, there is a presumption that if an officer gets pneumonia that it is in the course and scope of the employment.

[00:13:16] Speaker 04:
However, that was never raised in this case because he had so many additional problems.

[00:13:29] Speaker 01:
remainder of your time for rebuttal and we'll hear from the government.

[00:13:32] Speaker 01:
Thank you.

[00:13:34] Speaker 04:
I can't believe how many different cases you guys here.

[00:13:38] Speaker 04:
This is great.

[00:13:46] Speaker 03:
May it please the court?

[00:13:47] Speaker 03:
The court should affirm the decision of the Bureau of Justice Assistance because substantial evidence supports the Bureau's decision that Mr. Lobo did not establish the proximate cause of the injury

[00:13:58] Speaker 03:
that it was incurring a line of duty.

[00:14:01] Speaker 03:
And that's really the heart of the issue here, Your Honor, as you stated at the outset.

[00:14:06] Speaker 01:
Can you talk about where I started and why it is we don't have any information about the health condition of the population of the two jails during the relevant period, which would seem to be so relevant?

[00:14:22] Speaker 03:
My understanding, Your Honor, is that that provision that you referenced

[00:14:28] Speaker 01:
2017, it was enacted.

[00:14:30] Speaker 03:
And it puts the burden on the Bureau if they're unable to adjudicate the claim.

[00:14:36] Speaker 03:
And in this instance, they're able to look at the entire record, including opinions from three different medical experts to say, based on the type of bacterial pneumonia that Mr. Lobo had, we can't say one way or another where this originated from.

[00:14:51] Speaker 01:
Right.

[00:14:51] Speaker 01:
But there's certainly some general APA law.

[00:14:55] Speaker 01:
There's a line in.

[00:14:58] Speaker 01:
Supreme Court decision FCC against Fox television that says sometimes it can be arbitrary and capricious for an agency not to go and get easily obtainable information and we have a record in which

[00:15:12] Speaker 01:
as I think your brief kind of implicitly recognizes, it feels like it's very important to know what the general health conditions in these two jails are at the time, because you stress early in the brief and several times later, there was no evidence that there was a problem there.

[00:15:32] Speaker 01:
Well, there's also no evidence that there wasn't a problem there.

[00:15:35] Speaker 01:
It feels, therefore, as though whether there was a problem there is pretty important.

[00:15:42] Speaker 01:
And what is your understanding of whether such information might, in fact, be available?

[00:15:52] Speaker 01:
I assume, first of all, you didn't seek to use this authority or otherwise seek to ask the San Bernardino County, whoever runs these jails, for such information.

[00:16:03] Speaker 03:
No, my understanding that the agency below did not request that documentation from the county.

[00:16:10] Speaker 03:
Mr. Lobo did testify at the hearing before the administrative judge.

[00:16:15] Speaker 03:
He was at these facilities, and he testified that he's unaware of any pneumonia that was at that facility.

[00:16:25] Speaker 02:
So you're saying that it's your view that records aren't necessary because he testified that he wasn't aware?

[00:16:33] Speaker 03:
Well, I think there's evidence in the record that an employee that was at the facility is saying that they're not aware of it.

[00:16:39] Speaker 01:
Is that in the joint appendix, not just the record, but in what we've been given?

[00:16:44] Speaker 02:
It is, Your Honor.

[00:16:45] Speaker 02:
Did the Bureau rely on that?

[00:16:50] Speaker 02:
I'm sorry.

[00:16:50] Speaker 02:
Did the adjudicator, the hearing officer, rely on that?

[00:16:54] Speaker 02:
In finding that there was no way to know one way or the other.

[00:17:01] Speaker 02:
whether he caught the pneumonia?

[00:17:05] Speaker 03:
No, that was taken into account by the hearing officer and the bureau in regard to more so in regard to the discussion on Dr. Hyman and these literature articles that he discusses saying that there's increased likelihood of including pneumonia.

[00:17:28] Speaker 03:
at a jail because of certain conditions.

[00:17:31] Speaker 03:
And the analysis and the opinions really go to, on that factual basis, that there wasn't any evidence that there was overcrowding or pneumonia in these facilities.

[00:17:46] Speaker 02:
But there is no evidence on it at all, right?

[00:17:49] Speaker 02:
I mean, that goes back to Judge Taranto's point, which is, in a circumstance like that,

[00:17:56] Speaker 02:
Is it under the statute?

[00:17:59] Speaker 02:
Is there some sort of duty to at least make the inquiry?

[00:18:03] Speaker 03:
Well, I guess the position I'm setting forth is that there was some evidence on the record from someone from that facility saying the negative, that there is nothing there.

[00:18:16] Speaker 01:
Can you just give me the JA page where that would appear?

[00:18:21] Speaker 01:
And you said that this is from Mr. Lobo himself?

[00:18:27] Speaker 03:
Mr. Lovell.

[00:19:01] Speaker 03:
I believe it is on page 232.

[00:19:21] Speaker 03:
Oh, you know what, Your Honor?

[00:19:22] Speaker 03:
I'm sorry.

[00:19:25] Speaker 03:
I believe that I misstated it.

[00:19:26] Speaker 03:
It is Dr. Hyman's characterization of his

[00:19:30] Speaker 03:
um, and his, uh, now, conversations with him, blah, blah, blah.

[00:19:39] Speaker 01:
At this page?

[00:19:41] Speaker 02:
No, I, I led you to the wrong page, Your Honor, I apologize.

[00:19:44] Speaker 02:
Okay, sorry.

[00:19:44] Speaker 02:
So there is no testimony to that effect?

[00:19:47] Speaker 02:
Yes, I stand corrected, Your Honor.

[00:19:52] Speaker 03:
Okay, um.

[00:19:52] Speaker 03:
point your honor to the fact that it is also the burn-in is on its own.

[00:19:56] Speaker 01:
Right, of course that's true, but Congress didn't add 10288 for no reason.

[00:20:02] Speaker 01:
I mean, it almost seems designed for a case like this, that you can actually subpoena the public agency.

[00:20:08] Speaker 01:
I mean, I'd maybe overstate and say designed for this purpose, obviously, to get information about the individual, which maybe the public agency has,

[00:20:17] Speaker 01:
But for something like this, information from the public agency about the population, if you're trying to figure out did somebody get a particular disease at a gathering, at the inaugural ball or something, it's really relevant to know whether in the week afterwards, a whole bunch of people reported sick.

[00:20:49] Speaker 03:
I agree that could add to the relevancy, Your Honor.

[00:20:55] Speaker 03:
But even still, if there was just evidence that there had been a case of pneumonia or there had been pneumonia in the facility, that would be something the Bureau would take into consideration.

[00:21:06] Speaker 03:
But it would also, that's not to say that that would necessarily lead to a direct approximate cause.

[00:21:14] Speaker 03:
It would still have to show that Mr. Lowe came into contact with this pneumonia.

[00:21:19] Speaker 03:
direct the court's attention to the Malin case, M-A-L-I-N case, in which a employee who was working in agriculture got cancer.

[00:21:31] Speaker 03:
And there was evidence that there was toxins in the soil that could lead to cancer or aggravate cancer.

[00:21:38] Speaker 03:
And this court affirmed the bearer's decision to say just an increased risk

[00:21:43] Speaker 03:
that it is in the workplace does not necessarily lead to a direct and proximate cause of the injury.

[00:21:50] Speaker 01:
Right.

[00:21:50] Speaker 01:
And I mean, I think, right, it does not necessarily, right?

[00:21:55] Speaker 01:
But we have a record, right, in which of the three experts, one says, I think it's more likely, the other two say, who knows?

[00:22:03] Speaker 01:
And I assume that the decision maker here

[00:22:08] Speaker 01:
recognize the difficulty of the judgment that had to be made, are we going to say, well, we ultimately don't really credit Dr. Hyman's testimony.

[00:22:19] Speaker 01:
He's the only one who actually expressed an opinion of which was more likely than not.

[00:22:25] Speaker 01:
And that leaves us in the place of uncertainty.

[00:22:30] Speaker 01:
Wouldn't it possibly make a difference to the fact finder if there was actual

[00:22:38] Speaker 01:
information about pneumonia or related sickness in the facilities where Mr. Lobo was working?

[00:22:49] Speaker 01:
I agree that it could make a difference.

[00:22:51] Speaker 03:
It could make a difference, Your Honor.

[00:22:53] Speaker 03:
That information was not before the board.

[00:22:55] Speaker 03:
That was not raised as an issue before this court.

[00:22:59] Speaker 03:
And so I don't have any information in the record as to what

[00:23:04] Speaker 03:
extent if that was requested and there was negative information.

[00:23:09] Speaker 03:
All we have before us is that there's no evidence in the record as to when, where, or how this injury was incurred.

[00:23:21] Speaker 00:
Well, the evidence in the record was the report that says it likely came from the person.

[00:23:30] Speaker 03:
So one of three medical opinions say that it's

[00:23:33] Speaker 03:
there's a higher likelihood.

[00:23:34] Speaker 03:
And then when you peel that back, he's relying on several academic literature articles that have these aggravating circumstances like overcrowding, like an AIDS epidemic, other aggravating factors.

[00:23:50] Speaker 03:
And that's not what we have in this case.

[00:23:53] Speaker 03:
facts that are analogous to the conditions in the Fed academic literature to state that there's an increased likelihood.

[00:24:00] Speaker 03:
But then I would, again, point the court to the Moon case, where even if there is a higher likelihood, that's still not substantial evidence of approximate cause or stated otherwise.

[00:24:13] Speaker 01:
So it's still not necessarily persuasive evidence?

[00:24:18] Speaker 03:
Yes, Your Honor, or stated otherwise.

[00:24:20] Speaker 03:
This court can look at the evidence

[00:24:24] Speaker 03:
decision of the Bureau, the 24-page decision, in which they considered all this evidence and found that substantial evidence did not support the signing of props and costs.

[00:24:34] Speaker 01:
And just to be, first, I guess I want to ask two sort of focused things.

[00:24:40] Speaker 01:
We were talking before, I think, about did somebody say that there was no evidence of pneumonia.

[00:24:47] Speaker 01:
If you look at page 624, this is in Dr. Diaz's

[00:24:52] Speaker 01:
opinion that there's a table and if you go down to the second to last item

[00:25:01] Speaker 01:
And I want you to actually explain who wrote what words here in this table.

[00:25:08] Speaker 01:
It says, I am not aware of other inmates or staff being diagnosed with pneumonia during my assignment at the Victor Valley Jail.

[00:25:17] Speaker 01:
And it refers to something on April 4, 2017, page 16, lines

[00:25:24] Speaker 01:
18 to 25.

[00:25:26] Speaker 01:
That appears to be what would be appendix page 229.

[00:25:34] Speaker 01:
But which is, this is all part of, what is this?

[00:25:43] Speaker 01:
This document, a hearing.

[00:25:44] Speaker 01:
This is the hearing before DOJ.

[00:25:49] Speaker 01:
But 229 is not

[00:25:52] Speaker 01:
In the joint appendix, there's a gap between 216 and 231.

[00:25:56] Speaker 01:
And this is Mr. Lobo.

[00:26:01] Speaker 03:
I believe there were three individuals in the record.

[00:26:06] Speaker 03:
And you're right, Your Honor.

[00:26:06] Speaker 03:
Those pages are not before the court.

[00:26:08] Speaker 03:
It's just summarized by Dr. Diaz.

[00:26:12] Speaker 03:
I believe Dr. Hyman summarized Mr. Lobo's statements that he was not aware of any other inmates

[00:26:21] Speaker 03:
There was one colleague from the jail who testified, and I believe he also was unaware of any cases of pneumonia in the prison or the jail during that time frame.

[00:26:39] Speaker 03:
So I believe that's the two sources of that information.

[00:26:43] Speaker 03:
I should say three because it's time in summarizing Mr. Love and then

[00:26:48] Speaker 03:
the colleague.

[00:26:49] Speaker 01:
But you are correct, Your Honor.

[00:26:51] Speaker 01:
That's fine.

[00:26:51] Speaker 01:
And the little thing was something I discussed with Mr. Collins.

[00:26:56] Speaker 01:
So on page nine of your brief, you described Dr. Diaz as, quote, finding it equally likely that he's exposed, he being Mr. Lobo, at the jail or in other settings, citing pages 623 to 624.

[00:27:17] Speaker 01:
Where on those pages does he say that?

[00:27:19] Speaker 01:
I don't think he... Anyway, I can't find him saying that.

[00:27:23] Speaker 01:
The equally likely language is the language we discussed with Mr. Collins about the equally likely aspiration or inhalation, not jail, no jail.

[00:27:32] Speaker 03:
Yes, Your Honor.

[00:27:33] Speaker 03:
I think that was our characterization.

[00:27:34] Speaker 01:
Okay, okay.

[00:27:35] Speaker 03:
That there's two types.

[00:27:37] Speaker 03:
There's aspiration or inhalation and aspiration, you know, meaning that it colonizes in the nasal pathways and it could be dormant for

[00:27:46] Speaker 03:
indefinite period of time, so it could have been incurred anywhere.

[00:27:49] Speaker 01:
And the inhalation is down through the lungs.

[00:27:53] Speaker 03:
Yes, yes, Your Honor.

[00:27:54] Speaker 03:
And so I believe he makes that distinction just to say that, again, based on the type of pneumonia he had, there's no way to determine when, where, or how he got the pneumonia.

[00:28:06] Speaker 01:
But am I right that he never says, I don't know,

[00:28:10] Speaker 01:
But that distinction between the aspiration and inhalation somehow distinguishes jail versus outside of jail exposures?

[00:28:23] Speaker 03:
No, he doesn't say one is more likely than the other.

[00:28:28] Speaker 01:
OK.

[00:28:36] Speaker 03:
I see I'm about out of time, Your Honor.

[00:28:38] Speaker 03:
If there's no other questions, I'll briefly conclude.

[00:28:42] Speaker 01:
Thank you.

[00:28:52] Speaker 04:
Your Honors, I have no rebuttal, but if you have additional questions, maybe I can help.

[00:28:58] Speaker 01:
I think we're good.

[00:28:59] Speaker 01:
Thank you.

[00:29:00] Speaker 01:
Thanks to both counsel.

[00:29:01] Speaker 01:
The case is submitted.