mr ross how to get up there in the state trial court and state what's happening there today they're selecting a jury you think there are but if you're not in contact with what's going on in the contact i didn't go over there myself today but the report that i got is they're selecting a jury and they're probably going to open on friday or possibly the beginning of next week and mr ross worked what is the status of the court procedure or limiting rules or whatever about  disclaimer by plaintiffs as far as what can be offered at trial concerning mr hayden's alleged exposure during the navy i don't i'm not aware of the court putting any rules in place yet on what can be said and what do you mean you're not aware of don't you represent the hidden company i'm sorry the crane company isn't the grain company in this trial that started today that's right so why aren't you aware i just don't know that she's done anything i know that it's going to be raised where she either than your counsel you don't know but i'm not sure you want to i can't say with certainty are you going to participate in the trial so what or what has crane company urged to the state trial judge about how to handle a cross claim that was filed by a defendant american scion of a corporation now i think this appeal boils down largely to the question does that make a difference and we suggest it does not i don't think there's a dispute that as a general matter an action can be removed a federal court under fourteen forty two if a cross claim or a third party claim gives rise to a federal law here we've got the disclosure and that's what yes you're on the district judge did was exclaiming let me finish and i'll let you talk so that the district judge felt that this disclaimer was a sufficient limitation on being able to have contribution against grain for exposure while in the navy and said that if plaintiffs attempts to bring this back in the attempts to sidestep its disclaimer you can seek removal right then so i'm not wonder i'm wondering why crane is so unconfident about judicial stoppel and play of not being able to present evidence of exposure in the navy from crane by mr look they're blaming me i didn't do it he got it while he was in the navy of course americans animate can do that but hasn't the judge or isn't crane pushing for some sort of limitation for the jury to consider when it reaches its verdict along that line that at this preach our conference that was held about a month ago no your honor we think this is a valid cross class i mean we're going to have to defend it on the merits and that's our position that this is never been dismissed american scion of a file that after obtaining leave to file it as saying crime company calls exposure and therefore they've got up play contribution to us that there's two different issues here one is the factual issue the other is the liability right and i'm surprised that apparently crane hasn't sought to get some sort of the seller's case considerably you didn't mention your principle you didn't bring it up in the reply brief but that claim seems to suggest to me that louisiana law like the four circuits but now would not allow this to be a valid crossly right are you familiar with the seller's case yes or no ok well i'll just read from it but if the plaintiff has no right of action against a particular tortfeasor neither can the remaining tort fees or have any right of action against the first one for contribution why does not resolve the case i think that the key word is right i think that the plaintiffs do have a right of action but you said it does not have any right right and i believe that the plaintiffs did have a right of action and do have a right of action against crank up based on the navy exposures that they chose not to pursue i don't believe that that precludes a cross claim defendant or a third party defendant that subrogated to the rights of the plaintiff from exercising his rights however it fit ok we will in cellars you remember sellers pretty well not particularly as in sellers they say harvey versus travelers where the joint freezer could not see contribution from another joint two or trees or who had previously saddled with a plate or had made the choice to settle and release i think you know we would say they're your honor if there's been a settlement and a release there is no further right to proceed against that entity i believe one of the plaintiffs one of the cases they cite involve the dismiss l of the defendant if the defendant had been dismissed on the merits or had obtained a binding release then that changes the equation but that hasn't happened here through an intentional relinquishment of a right somehow still remains a right in this case as distinct from a settlement and release i think an intentional relinquishment of a right that the court then so orders would make a difference to what case do you have to join that nuance i don't know i don't i we're relying on the propositions of l you know you can defend this you can handle this appeal any way you want but i'm really surprised you have such lack of knowledge of what's going on in the state trial court i'm sorry i was really focused on this and that well that is the focus of this is what is happening on the louisiana law in this state trial court that would permit removal to a federal court and you're not given as much help here as to what's really taken place your honor i think that the question of whether this from move on was proper has to focus on the moment the case was on the well but it is to test the judge's idea that no you're protected it would help us to know what what what is being claimed in the state trial court now by crane company for us to have a way of testing the district judges theory and rank up and you certainly claiming that the plaintiffs cannot proceed on these navy allegations against lanka or not claiming that american scientific and we think they have a valid theory of liability although we're going to contest and you're going to contest that if if there is exposure in the navy you're going to contest that you would go one dime to american sentiment that's right your honour's if i could turn to just a few other brief issues the the  rs raised in their brief i think three other arguments in addition to the obviously the central argument is this cross claim argument they raise three other arguments i'd like to address them briefly the district court did not reach them but to the extent this court does i'd like to at least say something one they argued the crane code doesn't have a even if it could remove this cross claim it doesn't have a colorable defense or meet the requirements of fourteen forty two a one they relied extensively on those arrangements for court opinion we agree that it's all in that was before spring it was decided i'm not saying grain i don't think crane did someone i think another party did in fact make a motion to that effect and the court denied it i will say that we are intending in our instructions to ask the ask for instruction to limit our claims against crane co to only his land based exposures we're not seeking any damages based on his exposures in the navy  for any other defendant in this case the the disclaimer at issue is is focused on the navy exposures and what what we said is that we're just not seeking damages i think evidence of that likely will come now if american sentiment tries to put it in and probably can what procedure do you see the district court using to preclude any damages being assessed again assessed against crane either directly fault in the case but the plane just won't be able to recover for any fault that's attributed to the navy exposures but it is going to be appropriate for the to be some portion of it now where the jury could determine that for example fifty percent of whatever  that the navy will be there jury will have the opportunity to apportion ball to the navy you by possibly have any site for a case that describes those procedural mechanisms that would protect defendant in terms of instructing the jury and even if damages were awarded for maybe exposures they would essentially be subtracted from the plaintiffs in any award that the plaintiffs receive from the jury and that's a similar procedure i think would which to us seems to be the key provision that would govern a contribution claim in the circumstances and it provides that the defendant can bring to defend the principle action can bring in any person whose life who who is or may be liable to him for all or part of the principle demand and so our point is that our principle demand is limited and so the contribution claim has to be limited according i'm not sure how familiar some opposing counsel was with that case but the court had extended discussion and its pacifically then moved to the notion of even a release being sufficient which to me would work against their argument of a right choice distinction i completely agree your honor i mean or settling it or the fact is that we've we've given up the right a right that we did have you know we're not denying that we did have the right or the does have those exposures we're just narrowing our claim and now that the expert testimony that is going to be offered it trial about this disease is the expert testimony that this disease starts at some point and then is all other exposures or as it was the expert testimony that it starts at one point and then stops and resumes later i mean what is the expert testimony about this disease that's going to perhaps involve cr what's the verdict form going to look like i think the jury will have will get a line for the navy they'll be able to attribute fault to that to the navy exposure generally i mean i guess we could parse it out with crane company  land based exposures versus maybe exposures if we needed to but i think the jury will be well informed it sounds like we're on the same page with the green company in terms of not seeking damages for the navy exposures so i mean he had three years of navy exposure i don't think will necessarily limit them but you know they're not that's not our claim so we'll be concentrating on the more recent exposures the cultures he had sites like american animate but it's not the focus of our claim but we're not denying that it was a significant portion of his exposure whether how much of it is attributable to that is obviously up to the jury you sued seventy eight point seven eight defendants we originally did we don't have that many left in the case of seventeen we're down to less than ten at this point you had seventeen at the pretrial that sounds that sounds right yes  have read more carefully i didn't realize crane was a defendant also just in the civilian capacity correct so they're still in that sense they're in the i don't believe that stated in the briefs you know and i apologize i realize that was not made as clear as it as it should have been so they've always been a defendant in the case and we just had the disclaimer i mean they're not the only one that the disclaimer applies to i think there's multiple defendants at least a handful that where you know they have maybe equipment that had its best isn't it but  there were three times that crane co was put on notice that assuming they did have a valid american time and did have a valid cross claim that they were  federal court and and removed even if even if the americans lyneham it later decided where we were going name then we were going to name them and all i think that is a very weak position you're taking in this case that the minute you think something might happen you've got to remove it as opposed to waiting for it to happen i understand you're saying you're right i think that the answer combined with what american scientists had said in the in the first removal proceeding where they made it quite clear that you know they straight up said there would be a federal defense to the cross claims they were bringing still they didn't they i don't know why a crane is supposed to remove just on rumor or just on we might do this as opposed to when it actually happens i would be a very unwieldy system  i do understand what you're saying now why did you raise this point well because i think combined with the answer with what americans i am and said and then judge in the hearts remained order it was very clear to them that that there were claims for a hundred cross claims her contribution being raised and that there was a factor that you know that even americans i am in was saying there was a federal defense but never name that's correct but they filed across claim not just agree against crank zero against right you know several parties but until they actually name crime tell washing crime go have to follow a removal petition on what might happen speculation instead of what does happen well i think it would be speculation if they hadn't if american standard hadn't explained their position that there was a federal defense i mean i you know i obviously we could disagree on that i mean we agreed just a few points i wanted to hit number one we talk we're talking about whether this cross claims should exist you know whether the plaintiffs have the right or make a choice but the problem i having is it does mean whatever whether it should or not american science and found it served it and as you heard someone try to get it dismissed and the district judge and or the state court judge didn't dismiss it i think that's important and wait a them and i agree your honor the problem is this is what i was going to say i'm not sure what procedural mechanism there is so you better think of one and i know but i'm not sure because it's one injury so how do you how do you split up one injury there will be a fault apportionment i believe in the wrongful death part of what your fear in the in the other part of the claim that the survival claim that it's subject to the fear of fair system there is not going to be any apportionment so i don't know how did this how it works in that part of the claim you don't you can't say that there are two sets of damages here and one only comes from the navy and these other damages were caused by some by the civilian you could say as among all defendants twenty percent t defendant twenty four percent of that one and then you could ask the jury to come up with the total amount of damages suffered by the plaintiff and they could give a number and then i could subtract the percentage that was attributable to the nabi from the total amount of the damages and i'm done