he was instructed by pharaoh to begin to walk into a caged up area in the facility and perform destructive quality testing on the product that they were making the time for was making  discussion of pages forty eight fifty two in which counsel for the remaining defendant clark industrial the court and myself discussed the purpose of the third and complained that was too bad claims for wrongful death and was made very clear that there would be no removing of any claims particularly those of pro engineering because part industrial wanted to read those into the record at trial the judge having heard that there was not any  complaint on that date in order to decide did not grant leave and waited for the time of that filed during that day there was a clerical error in which exactly right i was at that i was at the trial and made the arguments i had  pharaoh when the clerical error occurred i went off the record the next day and told the judge that we had made an error and that we were not ready to present any complaint to clarke to discuss the met the leave her amend the case law cited by the appellee in this in his response regarding this issue has to do with a very particular issue of prejudice to the defend did at the time of trial and amending at the time in all those fair was not a part of that case the parties that were involved the court which these cases really are concerned with to make sure that the court is on notice of things going forward and clark industrial we're all very much aware that it was  plaintiffs intends to continue those claims against against federal action there the first time that pharaoh had any notice of a thirty minute complaint was after the notice of appeal after palace papers and then in response because papers with their response reading the record on appeal without the transcript assume that there was a third american plane made that argument there was no prejudice here to federal as is statue of limitations runs before a plaintiff understands that he has a claim and that's ok that sometimes happens this was before a cause of action ever arose there was no question of whether or not yet discovered he had a claim he had never actually had a language that connects compensation of the probability we see it in the language of the statute we see it set out in the treatment case which i'll discuss further based on the x language a worker whose injuries are not recover ble under the provisions is foreclosed from making a claim to workers compensation he is not foreclose under the language of the statute from any remedy whatsoever against his against his employer the workers compensation act section five a states that no common law or statutory right to recover damages other than the compensation herein provide is available to any employee who is covered by the provisions of this act it goes on  as an additional people who are available to an employee was covered under the provisions of the act come up to anyone wholly or partially dependent upon common to the legal representative of as a state comma and finally anywhere that otherwise entitle to recover damages for such injury against compensation and reason of her ability brought up in section five day mr fault was never entitle to recover damages under the act and why was he not because of section sixty years after the last exposure for a occupational disease he has no right to file an application it is part he does not lose before the industrial workers comp commission he is not allowed to apply so the was not able to abide commission and in that particular circumstance because he is outside of the provisions of the act because he was unable to even apply for recovery he comes under under that every fourth exception of  seventy one he did not he had his injury in two thousand and eleven when he was diagnosed with his disease by that time the worker's compensation bar had excluded him from evil by for that reason so you're making the tests you know you know and you want us to write that they i think it's when it's discoverable because you see it would show up and that and a specific blood test well to answer that or the the disease proceedings that took place on the afternoon of september thirteenth before judge fargo you will see that they were granted lead the file the third event to play council's representation to the court that they were not granted leave to file  in response to the request to file judge marcus said at the top page forty eight is the transfer proceeding to september thirteenth in the afternoon granted go ahead and file it those are his exact words indeed off the record yelling that no that's going to be very interesting when you read exactly what happened there you see what was taking place during this motion and women a period is that the defendant clark insolation wanted to put into evidence plaintiff's second amend complaint because it was filled with allegations about all the wrongdoing by my client farrow and they were going for a sole proximate cause defense that fair was the sole proximate cause so the second amended complaint was going to be there evidence of sole proximate cause part of the admissions were made and that by that point the plaintiff on the other hand wanted to add a survival count that was the reason why they wanted to amend this because they had neglected to include a survival count in their second  the judge actually say go ahead and file it and that's what you feel is given a lead he says granted is the requested yes yeah it's right in the record top of page forty day so what happens is the defendants are objecting because they don't want the plaintiff to drop those allegations against pharaoh from the third amended complaint and then the judge asked mr blank are well are you going to do that are you going to subtract things from the complaint and his words and i quote page fifty one of the record we wouldn't do that that's what he says we wouldn't do that those are mr blank or to exact words and nothing that what right and then what happens if you look at the record of page three seven thirty one which is where the third amended complaint appears you will see the spiled on september thirteenth your copy probably has a time sta i only have a copy of the front of that pleading so i only have eight stamp on it but usually the clerk's office does put a time stamp on the back i'd be curious to see what time it's actually stamped because i would suspect that sometime that afternoon of september thirteenth after the judge said granted and after mr brian burke represented to judge fargo that he was not going to take anything out of the complaint of course i suppose you lose tone when you're reading the cold record maybe said we've that sarcastically or he said it's  we wouldn't do that i don't know but the fact is they filed the third amended complaint dropping those allegations so i think this was a very strategic and deliberate way for of the allegations against farrell because i don't think plaintiff wanted a complaint on file that the defendant clark insolation that they were going to trial against who didn't introduce unevidenced before the jury so i think they deliberately took it out i think it's a deliberate waiver i think was a tactical and strategic decision was made not a record discussion about this and i don't know how he can rely upon it off the record discussion to make his case faust doesn't permit that so this is a very clear case of of waiver under the foxcroft of all they deliberately dropped it did talk i'm back full circle but it make versus holy cross hospitals almost identical suit it was an identical situation that case they used to treat babies with x rays for large sky rights and they discovered decades later that this and decades later they discovered it caused thyroid cancer just as forty years later mr biker's plant developed mesothelioma so we went to the supreme court on that issue of that very question is it possible for someone to have their claim bar before they even discover it and that's exactly what the make a stance for that anderson versus wagner is what the supreme court held in mega that yes it is conceivable it is possible for a claim to refers to coverage of the act in the context in which that a rose is if you turn back the clock in the early part of that the twentieth century claims for emotional shock emotional distress were not recognized in the common law and then what you had is that series of cases starting with pathfinder followed by collier's followed by your brain where people tried to make workers compensation claims based on emotional distress type injuries and the employers defended those cases saying that these were not compensable under the worker's comp back because they were not injuries recognized is actionable with common law out and the supreme court held that doesn't matter it is a line of duty injury suffered arising out of it in the course of the employment is therefore compensable and that is the context in which that term compensable is used because if you look at the four exceptions not accidental you phrase arose in that context and there are other examples i mean another example of a claim that would be not accidental and arise out of it in the course of the employment and yet be not compensable and the act within the meaning of that fourth exception would be an employment discrimination like you know employment discrimination claims would be clearly an example of something that occurs in a line of duty that's where those types of wrongs are typically perpetrated so they do rise out of they occur while you're working they are usually causally connected to your employment they can be accidental from the standpoint of an employer's policy that happens to having an indirect impact on a particular class of people but they're not compensable because the legislature has taken them they don't they don't turn on the fact that someone was unable to recover benefits and other otherwise a claim that otherwise fell within the coverage of the act that's why i think the plaintiff is ascribing a meaning to that word that an employer would have to raise that's why to some extent i almost feel like plain tire argument is hypothetical in the sense that i mean that's why he raises that question of that twenty five year riposte period being unconstitutional if it were covered section five says the cover compensation is available for injuries that arise out of in the course of those it's exceptions two and three that they're describing they're not purse prescribing they're describing and nine compensable arises out of that employment discrimination cases being another there could certainly be other categories of claims that people could make against their employers that arose from injuries that occurred in the line of duty that the legislature has determined are outside the scope and coverage of this act and that you can pursue your if given you permission to sue your employer for like under the human rights act like the only human rights act like title seven forty years they had to review after i just discovered well unfortunately the legislature has made a determination that's true in medical malpractise cases to medical malpractise cases you know you only have four years after the act or omission causing injury in which to sue so if if they left a sponge in you and you didn't discover it until five years later that's part of me this is a judgment call and i think it's an interesting judgment call because in this context our legislatures determine that you get three years to file a comp claim to twenty five years  like that's kind of a distinguishing feature they're relying heavily on that pennsylvania case that came down different statute but if you look at what happened in pennsylvania they only had five years regards the type claim and i think the court for that reason found that he's types accrue much later fell outside the scope of the statute but it only the legislature determined twenty five years and that was a balance that was struck because they knew that mesothelioma claims can sometimes take as he says in his brief thirty or maybe specialist and fred did not provide that information with employees including mr felt that that in fact without that information from their employees including mr holton so we plan to offer into evidence the second amended complaint and then the third amended complaint which should be identical except for the five additions to it not subtractions the court got except for the injuries that damages ok they go on at the end a bad day on page seventy three we have to get the amended complaint the court yesterday there was no will be the same there's not a new disclosure to be made because it's not going to be a new pleading we assume that's been fiske closed court that's true and the defendant agreed to the filing of the third amended complaint current said so nothing new so are you amending the complaint no objection granted file it ok now it's file mr house and we don't have it and then i read through all of that stuff it was not a granting i believe there was a constant conversation going on here between five pages of up in camera discussions with the court there was