three causes of action and both of those are addressed in the party's briefing i'd like to talk today starting with the state law issues and hopefully i'll get the some of the some of the federal issues as well so i think one one critical honor that requires legal action for for somebody to be appointed to represent his state the second thing that happens under minnesota's they law is possibly a cause of action arises for what's called the heirs and next of kin  this is a totally separate entity from the estate and the estate and the heirs next to can have different interests and they can pursue different causes of action the estate has claims that belong to the person who died to the seed the air is the next of kin under the wrongful death that you they have a new cause of action the four harm and damages that they personally suffered as a result of the over the estate doesn't have a claim for a period of six years and the difference is that the state has claims for all damages that survive at the scenes that the next of kin circumstances it could be prohibited but is it do you have any indication of whether it's common i don't know your honor or whether whether it's common i have to be honest barely any experience and probably law this isn't something that we handle theoretically the same person could represent both the next of kin and the estate but what's important to understand here is that the next of can do not money in this case two things could happen number one if the person who died at the scene the mr good had a will he doesn't in this case but if he had a well whatever money is recovered in this case will be distributed pursuant to as well well the second issue that's important is creditors can go after the estate creditors under minnesota's the law cannot go after the money that's awarded to the heirs and next of kin and that makes sense because that money is given to them for the harm that they personally offered from the loss of their loved one creditors can attack the estate and so for this reason just because we have people who could potentially recover this money both as a state beneficiaries and as heirs and next of kin that doesn't always work that way under minnesota state law and potentially the heirs and next of kin will get nothing from the estate the next thing that's important to consider is what are could be if they pursued this case within three years and it did happen in earlier litigation that's the cost and the briefing but in this lawsuit word us today the estate is the only plaintive was it the same plaintiff in the first case and be sued in the courts sure under minnesota state law the cause of action that remains under nine hundred eighty three in this case would not survive and yes they could not bring that cause of action examples of causes of action that could be brought  understanding is that of what property disputes disputes about residences or businesses that the scene owned these are things that could survive and the estate could pursue those claims in the state could be sued with regard to those claims y or personal representative should be able to bring this federal suit our position your honor is kind of twofold first of all this court doesn't have to decide what rights  briefing actually five seventy three point zero one the survival statute that's that shoot itself that if any claim is to survive that survives the personal representative that's the that's the language that's used in the survival statute then if you look to the estate and so my position from my research and what i've been able to learn about this process is that potentially and a police lawsuit where a person was shot actually both the state and the to recover damages suffered by the deceit and and again these are two separate things that could happen in the same lawsuit if what enables the claims that you represent for the as a special representative or we are in this case that yes i want you to give me your best authority that that this court is required to reverse sure so your honor i think that the place to start with regards to what to do with claims is to to look to the roberts in case robertson case studies out precisely the situation that we're dealing with here that case actually the facts of the case involved individual who died from unrelated causes robertson says that of if you have a case where a person does die as a result the constitutional violation two factors that the court has to consider number one is deterrence a number two is compensation and if state law does not provide for both of those to be to be accomplished the federal judiciary is required to allow for those claims to proceed in my supplemental authority letter that i filed approximately a month ago i provide the court with three other federal circuit cases we have shot reverse of city of los angeles that's a ninth circuit case we have very divers damages a federal law has to step in and allow somebody to be able to pursue those claims on behalf of the deceit and looking to see if they are both standing in the district or here said that those were to be able to pursue these claims and the cases that i just cited actually speak to that those cases dealt with very similar statutes that we have here and those cases the cited that having this idea that the errors next of kin can recover some very limited compensation that does not include compensation repayments offering that does not accomplish the deterrence and compensation facts that nine hundred eighty three seeks to accomplish because you have a couple  you he placed a court plan of appellant is asking this court to set aside state law essentially to escape a predicament of his own making in this situation minnesota state law routinely situations where it related to tort claims that would otherwise be covered under the survival statute minnesota state law appoints a trustee for the heirs and next of kin for both wrongful death and survival type claims that is different than in some of the states from other circuits that players counsel has referred to we have cited numerous cases at page twenty six of our brief including four in front of this court in which  trustee was pursuing in section one thousand nine hundred three claims in those cases related to a death and we have also included jury instructions from a case in front of the district court in minnesota under which a trustee appointed under minnesota state law the jury was instructed that that trustee could recover damages for preet pre death pain and suffering the exact type of damages sought to be recovered in this case  the plaintiff here himself attempted twice before to pursue these claims after trustee once twenty during the period when he was a duly appointed trustee and then once after word  right absolutely that is correct your honor however minnesota state law is clear under section five seventy three that the five seventy three point zero one that a cause of action arising out of an injury to the person dies with the person except as provided in five seventy three point zero two and that is five seventy three point zero two is the provision that relates to the trustee so minnesota law is clear that the trustee is the only person who is permitted under state law to pursue these claims and i don't really hear plaintiff arguing differently what i hear plaintive arguing is that he believes that these claims just abated and can no longer be pursued and that all the prior cases in front of this court the district of minnesota finding a trustee could pursue those claims were in error and that this court under robert n should disregard minnesota state law and create its own federal common law for cases related to that would arise out of minnesota and under  two cases in the district of minnesota that directly addressed the issue also declined to find it inconsistent and found that section one thousand nine hundred three claims could only be pursued through the trustee now also i don't know that plaintiff has directly said this but i want to be clear the trustee can still be appointed he is the plaintiff is correct that the statute of limitations has expired for a wrongful death action however minnesota precedent makes clear that that does not bar the appointment of a trustee this makes sense because you could also have a survival claim apart from a wrongful death claim under section five seventy three point zero two subdivision two that could still be pursued you had not yet expired and your position is that the special administrator simply has no powers that are similar to the trustee in terms of these kinds of claims i think that is the only fair reading of five seventy three and i think the parties are actually in agreement on that because the plaintiff is saying that these claims abated so this court as part of its creation of federal common law should look to minnesota state law to the special administrator and basically adopt that type of framework for these types of cases going forward is how i understand plaintiff's argument and so why and why not why not look to the special administrator as well as the trustee under state law well i don't believe the i think in order to do that the court would have to find that the trustee was not a sufficient basis because section one thousand nine hundred eighty eight says this court has to look to state law and only under roberts and if it find inconsistent with the constitution or federal law can it create its own federal common law and i suppose maybe adopt in part of the special administrator framework under minnesota state law so i don't think we can have a both a here under robertson and section one thousand nine hundred eight this court does not have the discretion to create additional avenues to standing in the absence of finding state law inconsistent with federal law and this really gets to the crux of the plaintiff's argument because as this court has previously recognized as the district of minnesota has previously recognized standing in damages are two separate inquiries under this area of the law  he has cited all of the cases he has cited they do not involve changing the party pursuing the claim they some of the cases permit trim back the amount of damages that party may pursue under section one thousand nine hundred three some cases disregard state law limitations on damages recovery and that is essentially what this court has been doing and what we would ask the court to continue to do here is to read minnesota statute five seventy three as identifying the party but not providing necessarily a limitation on the damages recoverable now the district court went even further and said there's no conflict even if the damages recovered by the trustee are limited to the damages under five seventy three point zero two but this court doesn't have to go that far this court consumer can leave the issue of damages to another day and as we have discussed in the cited materials a district of minuscule minnesota courts have permitted trustees to seek the exact type of damages the plaintiff is claiming briefly i would just like to say in a could you address this point that was raised by the city has been on both sides of the question about what damages can be recovered you say well you  well your honor that in that case there was a motion to show cause brought as part along with a summary judgment motion essentially to understand the district court and that in that case is view on who had the proper standing at that point to bring those claims it was in that case exactly that the trustee was permitted to seek pre death pain and suffering so i definitely don't think it was over the city's objection as i understand it or know it honestly or i've not i don't think that's in the record and i was not directly involved in that case so i don't know at that point but obviously we would abide by the court's order on that and if this court wants me to take a position that we will not object to the plate of here seeking pre death pain and suffering that's fine we'll do that we're not seeking people to stop being say this court the the decisions that we cited before this court included i guess those were mostly coming up on summary judgment so damages hadn't completely been fleshed out however those were still at play the damages in those cases for pre death pain and suffering the only cases i have were damages was a final issue i haven't found any appellate level decisions on that but in the district court those have been permitted to be recovered under minnesota statute five seventy three point  two and point two i mean i understand he takes issue with the the city's position on this but he too has been on both sides of this issue when he filed this complaint the second time he said that the trustee had standing to recover pre death pain and suffering that was in his complaint that was dismissed based on lack of proof that he was the trustee and is it that he took a different tack and received his appointment special administrator so the city will obviously abide by whatever guidance is given to it by the court we now have the guidance of the crawford decision and it we do not seek to prevent mr goulet from recovering pre death pain and suffering damages in this case and would not object we will object on the merits but should it come to a motion as to what damages are available i can represent to this court we would not oppose that being given to the jury should this case ever make it that far briefly i do want to mention that there is an alternative basis for this court to affirm and that is on the merits the before the district court the parties cross moved for summary judgment and both parties agreed that there were no outstanding fact issues with regards to liability both parties did put in raef that initial brief on that issue and as the cases i have submitted to this court state that is judgment brief however and the court need not go here i'm i'm just saying it's within the court's discretion to reach this issue should it so choose because the plaintiff has had the opportunity in briefing before this court to address it as well in the cases i've cited have found the court will sometimes consider such alternate basis for ferman it's in the crawford case what was the court's rationale for  allowing the damages that were but you say here in your brief you just say when the matter was submitted to the jury the court to limit the damages spent together there's no opinion on that that is my understanding is that these were these were the what we have said in our brief is the jury instructions which clearly lay out the pre death pain and suffering damages i do not know as i stand here today if there was a separate written order from the court on that issue standing of why they would be allowed is it because the federal law requires that one nine hundred eighty three requires the court to allow more damages than what the minnesota statute even i think that has been the practice i think it's an open question as to whether or not it is actually required by the by federal law as the district court found however the city's position before the district court and a very comfortable with is that that's fine if those damages are submitted by a trustee to the jury you sure that's the city's position even if they're not authorized by law or are you saying you seem to be saying you're not sure whether the law requires that these damages be permitted but the city's willing to pay them anyway well it seems like an odd position i don't know if the taxpayers would endorse it so i'm just wondering if it's really based in the law what i'm saying your honor is that as a practice these damages have been going to juries and now that the issue has come up more directly in front of the appellate setting and we have a district court order saying they're not required i think as to whether or not they're required is an open question but the city is comfortable with this court stating that issue for another day or weighing in and saying that the practice has been followed up until now is in accordance with federal and state law i would a couple things that i want to mention your honour's first of all it's clear that the pre death pain and suffering damages are not available under state law the city may take a different position but the bottom line is that the laws clear the statute is clear them to be available even if the state law doesn't allow those in the city seems to be saying they acquiesce in that position that appears to be the case but that it already does that solve any problem about requiring the trustee to be the party no your honor and the reason for that is because even if mr of the was appointed the trustee in this lawsuit not on the prior losses but in this case where he's only seeking pre death pain and suffering damages question is what would he be allowed to pursue under minnesota state law and the answer is nothing there is nothing left for them there is a next of kin there is no authority and under minnesota state law for him to be able to as a trustee to recover these appointed he was love north already three cover anything in this case i want to mention something all before i run out of time we've cited three specific statutes where the minnesota legislature has made exceptions for cases that were death claims are allowed to survive those are cited in the briefing and in the supplemental letter each of those statutes goes back and allows the personal representative of the state recover damages another trustee amount of time so