considers whether the release that was signed by mr and mrs barbour in two thousand and two should be interpreted to grant the defendants a license to defame the barbers in perpetuity we urge the court to reject this interpretation for two reasons first this action this defamation action does not grow out of the wrongful death action and  because it is not it does not have the same legal and factual issues involved in this defamation action as are as are involved in the wrongful trouble understanding that it's a very sad case and and it's certainly a sympathetic case but i can't see why it's not exactly the same thing as occurred before the release was signed just another instance of it and i think the brief in fact makes that point that it's another instance now if it were released for a car accident you had a car accident with me january one you drove negligently and injured me for release of all claims and beginning of time to the present  form release and then there was another car accident the following year same people and that would not be released because it really is a new car accident but here it looks like it's the same thing before the release is signed and the barber say it's a defective firearm because it can fire without the trigger being told and remin n says we couldn't get it to fire without the trigger being told and what's more there was rust and then poor maintenance on the gun and some i can't remember if they said there was a modification and then there's a release and then subsequent to the release mr barber is promoting his view that something ought to be done about the gun because it's the it has a defective is saying the same thing we couldn't replicate the accident i can't see why it doesn't fall within that common nexus and grow out of phrasing that our cases apply well there are several reasons your honor that the issues in the wrongful death action center on of events that occurred on october twenty third two thousand and ten or two thousand if so what were the damages resulting from gus barber's death the issues involved in this defamation action center on statements that were made by the defendants beginning in two thousand and ten  similar statements made by defendants prior to the release there were statements made by the defendant about the condition of the barber the condition and testing of the barber rifle that's what i met there were but there are two factual issues here that are the subject of this defamation claim one is the condition and test you know the barber rifle and the second is whether it is possible for these rifles not just the barber rifle but for these rifles use model seven hundred rifles to fire without a trigger pole that has for reasons that have nothing to do with improper maintenance and or stand that bore organism or at the same statements made before the release will sign the release applies to all claims that were could have been made just your standard form broad release this is there's a couple there are several issues involved in that and the issues concerning the possibility of these rifles fired without a trigger pull was the message of mr barber and was the message of the c n b c show remington under fire it was not just the bar the condition and testing of the barber rifle that wasn't reported in the c n b c show what the c n b c show had to do with was whether or not it's possible for these rifles to fire without a trigger paul statements were made in response to that their message their message and their statements is that it is impossible for these rifles to fire unless are improperly maintained or improperly  adjusted mr barber became a public safety advocate and an expert on these on this issue and remingtons internal documents after the release was sign he did it through years of investigation years of discovery and he's become a nationally known nationally recognized public safety advocate on this issue and on remington's internal documents case no question about that but because the claim applies to or the release applies to all claims that could have been made that means that even though they were just litigating a wrongful death claim at the time if they could have made a defamation claim at the time that was also released i don't know that they could have made a defamation case at the time i can't see the material difference because remington's defense of its firearm was  material least similar part of the one of the issues in a defamation case is whether or not it's had a it's had a defamatory effect on the barbers the damp and the defamatory there's also an issue when you're in litigation or in pre litigation whether or not statements are conditionally privileged and there's an issue about what that privilege does not extend to this response that's true b you've got a different problem now and that is that mr barber has made himself a public figure he has and weak knowledge that he'll need to prove actual malice if this case is allowed to proceed he is he has a limited purpose public figure for this for this not  to have a question for you if i may  traditionally every time someone utters a defamation it's a different tort and so in that sense at least mr mr barber could not back and you know the early part of the twenty first century first couple years two thousand and two when he signed the release could not as one judge i'm not troubled by judge kleinfeld this question implying that there's some sort of race judicata over the releases it covers any claim that grows out that grew grew out of the incident or some language to that effect something like this so why my questions are first doesn't this defamation claim grow out of the first answer that seem to be what the district court thought and second if it if it does is  release that would cover that and about the answer the short answers to those questions your honor is we do not believe that this these statements that were made in two thousand  groveled of or arise out of the wrongful death action or the subject of that release and and yes we do believe that montel was clear that you cannot contractually release a future tort and this is a few other that was for things like where you went to the hospital for your emergency appendectomy and the doctor required you to sign a release of any claims for negligence before he took care of it correct  i didn't think they applied it i thought they did not apply that rule to the sort of release i'm sorry your honor it is releasing happened after the event rather than white the doctor at the hospital with the  shooting instead it was every rise to the claim and and as opposed to a release like at a hospital that that occurred before the going before the night was you're talking about twenty eight to seven to two i think yes your honor the exemption from responsibility contracts that have for their object directly or indirectly to exempt anyone from responsibility for their own fraud tell the truth well isn't that the question then about whether this was a future court i'm looking i don't mean to beat around the bush i'm troubled by the statement page four of your reply prefer that says that the barbarous of requesting a judicial determination of who is telling the truth and who is not and these and these allegations getting back to judge kleinfeld point these allegations about whether as you said the two issues one is contesting the condition credibility to attack his truthfulness and his credibility when he speaks publicly about the condition of all these rifles certainly an ongoing controversy about this product and i think  included that you know what is missing from this release i don't think that you can i think that this is a new tort it did not exist no statements were not made and i don't think it's permissible under montana law to to to do here that the statements in the remington release and response i guess there are two responses really strike me as going to the the product defect issue the nature of this product so i'd like you to tell me why i'm wrong the reason first of all i think the reason that remington made these statements about the barber rifle in two thousand and ten in response to  this issue these statements remington's response was to this entire issue to this issue of whether or not it's possible for these rifles to fire without a trigger pull they attack mr barber the same way you attack a trial or attacks an expert witness they attack their credibility to undercut their message to undercut the public's trust in what they're saying and that's exactly what remington did here that did not occur in two like your thoughts as the montana supreme court ever issued a ruling that has held that a release executed in you know could certify the question of the supreme court we think the answer to that is clear your honor by reading the cases definitely a brief split the also clear that the panel doesn't think it's clear tartan contract issues here and that was that if you were to prevail at least on the question of law then it would effectively impose a gag order on remington mr barber could go on television and that gun magazine soon and that other media and say remington was a bad company that had made a defective firearm that could fire without having the trigger p remington would not be allowed to say no we didn't and and it's own first amendment right to speak on its own behalf as saying that they make sound firearms would be forded do you have any thoughts on that i do your honor i there's a quote there's a case in montana that talks about the interplay between the first amendment and opinion on is is is free to express an opinion they are not free to imply facts that are not true or to state facts that are not true and is what they've done in this case the statements they're all statements that they're making are not true that the underlying factual statement is is it possible for these rifles to fire without a trigger it the opinion is whether or not it's defective the truth and at the truth of the fact and which can be proven and which has been clearly alleged in the complaint the american point is is that documents prove that these these rifles fire without a trigger pull for reasons other than improper maintenance or improper adjustment the other just once pulled you take the position that it can be and that you think you can prove it and they take the position that it can't be and they think they can prove it that's right and that the current state of affairs that's correct there have been cases your honor personal injury cases where going back i don't want to get you away from judge kleinfeld question but going back to this statement in your reply brief you seek a traditional determination of who is telling the truth and who is not so are you seeking another judicial determination of that fact is that what you're saying judge christians question a few minutes ago where she asked you wouldn't that determination involve litigating the defense of truth that was part of what was settled in the release of the personal injury claim that the truth was not settles i'm sure it was settled that it was released was a claim there and at the claim was that the firearm could fire without the trigger being told it was in dispute and it was never judy katydid because of a settlement and release it would have to be adjudicated in order to determine whether remington statement that it can fire without the trigger her cannot fire without the trigger being pulled is true because if it's true what remington says then they have a defense in a defamation case the and anything whatsoever which the plaintiffs may now have or may hear after a crew are made in any way grow out of the accident and so forth i understand that your honor but respectfully there was no agreement as to whether or not these rifles were defective the barbers did not agree no you don't have to agree on what they were defective they didn't just remington agreed to pay the money without a determination and at the plaintiff agreed to dismiss and forever discharge and release all claims of any kind that arose out of their claim that it was defective and that had to do with that incident again your honor what the reason for these statements is to undercut was never meant in another incident i mean there was never another time when the same firearm fired without a trigger pull and hurt somebody court my name is james voce i represent the defendants in this case the district court judge christensen got it right the resolution agreement and the release forever discharged not only all existing claims but all future claims regardless of what any counsel help me on this month and a statute twenty eight two seven zero two  had i know some hospitals and some doctors before they will treat you require you to sign a release releasing the negligence that they may engage in during the treatment or procedure or surgery they propose to give you and that they just don't take care of you until you do that you want and as i understand this ad twenty two seven zero two that says that the patient can sign that with impunity because it won't affect its tort clinton i don't know if i'm understanding it right and i don't know how the montana court seven turpitude it i do know that the release purports to release future claims that may hereafter accrue and that's why twenty two seven zero two becomes relevant could you tell us what the montana interpretations have been of twenty two seven zero two well i think the statute is as plain on its face that pre tort releases are not valid in montana what we have here however is not a pretoria release it's a release  it's a new tour well it depends on the language of the release regarding that initial tort of definition so is it is it really your position that yes if running ten had said something as it doesn't grow out of the accident an accusation that barbara boxer barbour murdered her child killed him in some insurable thing like that something horrible like that would not grow out of the accident by its nature an accident is just that it's not an intentional act that would decide whether this is really a future tort i think it requires you to interpret the language of the release and decide whether this is a future claim accruing after the the alleged tort resulting in the accident occurred and that's what the scope any case that's come before a montana court on this subject because this type of release is routinely used by parties to settle lawsuits not only in montana but around the country that you see why it would be problematic when applied to a  for the reason judge gould indicated a new statement could be a new defamation depending on the statement it would depend on the statement here and if that statement did not grow out of the subject matter released in the early release that might be a question in another case but i think in this case the scope of the release the nature of the two thousand and ten statements which were merely repeating statements that it may been made in two thousand and one that related soley to the condition of the firearm as it was discovered in two thousand and one the function of the firearm as it was discovered in two thousand and one plainly applied or was in the scope of the accident and that is the fundamental definition of the scope of that release that the parties agreed to tricky set of questions for me at least let me ask you the same question i asked the panel is there any montana withdraw the language and a tort that occurs in year x plus eight which is here two thousand i'm not aware of that case your honor but i am aware that you know montana like all states do apply basic rules of contract construction to interpret releases and under those basic rules of construct construction i think this court could have confidence that the montana supreme court would apply those rules and find that question is should should our courts certify that i don't think that's necessary or honor because again basic rules of contract construction that have been codified in montana could easily be applied by this court and this court could predict that the montana supreme court would follow those statutory rules of contract construction and apply them to this release you know finding that this release does not cover of these kinds of after required or future claims you know what if effectively render invalid any number of subtle bits that have been entered into over the years in montana and elsewhere and i just don't think that any court whether it's the montana supreme court or supreme court of any other state would have terrible difficulty finding that this kind of after required later recruiting claim growing out of the subject matter released the accident and mr rambler i think mischaracterized the release and in some subtle but important way the release just didn't release claims growing out of the wrongful death action released claims growing out of the accident and that's an important distinction and remingtons comments in response to  program were live but it two comments regarding the rifle involved in the shooting its condition and its function it was a proportionate response in response to the see and b c program and the accusations made by mr barbour and others on that program you know and judge christiansen got something something else right and i believe judge kleinfeld alluded to it earlier you know he observed that any other conclusion would effectively put a gag order on party settle cases they couldn't talk about the case they couldn't discuss their uh that it's their claims or defenses without fear of defamation you know and that's just not how you know the well let had a couple of privileges to respond to the c and b c program one of which was you know a common law self defense or reply privilege which allows people to make relevant proportionate responses  accusations made publicly the other is the montana statutory privilege the fair ensure report of a judicial proceeding privilege and the plaintiffs in the district court in their rule fifty nine emotion acknowledged that statements made surrounding judicial proceedings are privileged but they don't answer the question because i don't believe they can if as to how a statement made in two thousand and one rose out right it's not that simple at some point it could become a future court i do dispute that because i think it's more properly character this be it i asked a hypothetical about if they had made some horrible talk a little ok statement that would be a different tort you knowledge it's not yes if it was if it was did not grow out of an accident if it wasn't plainly in reference to the circumstances surrounding that i think your son's question actually penetrated a little farther than that she i think  questions question was suppose and whether suppose that in some circumstance obviously not this one remington had said  we discovered that the accident that was previously settled was actually not an accidental at all it was a murder that would have been i think i think that's what judge christian had asked you and you had just said it was grossly negligent the family member holding the gun to discharge it i think that would be encompassed by the release because again what we're if those kind of statements were made those were essentially the affirmative defense pleaded by remington back in two thousand and one that there was contributory negligence on the part of the plaintiffs that there was a misuse of the fire our that would be running ten simply commenting on the prior lawsuit and its defenses and how the accident occurred so i do think that those kind of statements would be encompassed and that's really that's kind of comment would have a privilege just trying to undercut mr barbour's credibility as you know upon argues that would defeat such a privilege but that privilege is only qualified in the sense that the report is not fair and true and what remington said in two thousand and ten were statements regarding its defense of the lawsuit in two thousand and one and its defense of the lawsuit was that the plaintiffs misuse the firearm and the plaintiffs were contributory negligent in some regard so what remington said in two thousand and ten was a fair intruder report of what they alleged as affirmative defenses in two thousand and one it was a a report of what they discovered about the gun when they jointly examined the gun with plaintiffs and their experts in two thousand and one they jointly discovered the condition of the rifle they jointly tested the gun and discover member we don't know what's true it's never been adjudicated well but there it is that that doesn't have this doesn't have to be adjudicated because what we have here are pleadings in the record from two thousand and one that reflect the affirmative defenses raised by remington and all r and ten was essentially we've raised those defenses based upon if there's never been an adjudication of whether the gun really did go off without the trigger being pulled or whether the gun was improperly maintained or  because that dispute settled as you pointed out earlier that dispute was resolved by the parties and in the agreement itself the parties understood and agreed that the resolution was a compromise going my inclination as i as i to your responses other judges arguments is that much of what you're saying is a matter of degree and not kind and i'm not clear on how to draw the line for example in judge christians i pathetical some other dispute obviously not this one was a murder not an accident and you said that would be new on the other hand it is an explanation of something old the event of the shooting  and now in your answer that you just made it's it's really the same thing you know if remington undermine the credibility of somebody who is criticizing its products by saying the accuser is some sort of criminal drug dealer or child molester looks at child pornography all the things that we get regular diet of here and that would undermine the person's public standing to make criticism but it would obviously still grow out of the all done long standing publisher the battle what is the rule or princip for deciding what's a new tort that can't be released in advance and what's an old tort that was released by the broad language of the release well i think the court needs to come back to the fact that these parties are in a country actual relationship today and their contractual relationship began in two thousand and two and everything that they have to say to one another or to the public is defined by the obligations in that contract so far that's general and probably in this beautiful argument as far as it goes with them go far enough to answer my question  i think it goes far enough in the context of this case obviously in the realm of hypotheticals there are differences in degree in kind but in the context of this case in the statements that remingto actually made regarding the accident gun and the accident resulting in the death of the plaintiffs son i don't think there is a difference in degree because the court can look at those statements they can look at at the  plain language of the agreement and see that this is simply a future claim arising out of a past event and it's entirely proper for parties to enter into releases and settlement agreements under those circumstances with knowing that there could be claims accruing later acquired later in some way that brought of that event but you're accepting consideration to release those claims and that's what the plaintiffs need in this case you know and super imposed over this entire discussion the first amendment you know the remington did not initiate this conversation in two thousand and ten it was the plaintiffs who willingly went on national t v to renew a discussion about the accident about the rifle remington simply responded as it had a right to do and repeated the positions it publicly communicated back in two thousand and one about this accident and i think court you know all courts have an obligation to give the utmost protection to you know the free flow of ideas and points of view and opinions and in public discourse and you know if remington is somehow prevented from coming back and saying we have a different view on what took place these are the facts that we learned in the context of that prior lawsuit and state those facts those first amendment rights are chilled and that really i think is something that needs to be considered separate and apart from the purely contractual issues that exist among the parties if the court has any further questions i'd be happy to answer them otherwise the defendants request that the district court be affirmed just simply like to address this issue or do you draw the line or where should the court draw the line and counsel for the defendants try to make a distinction between future claims and future torts and and i don't think there is a distinction to be made there i think the line to be drawn is did the clam exist did the torrid exist when the release of signed this claim did not  in two thousand and two and it did not come into being until the statements were made because even though they're the same statements they were repeated it's a neutral why isn't new to it because you repeat a statement it's a new tort and the reason for that is usually articulated because it reaches a broader audience or a different audience and it creates new damage and that is particularly true here this statement  a statement two thousand and one was a press release that rimington issued it was not widely reported these statements were was a slick video presentation that was posted to a dedicated website it's been posted to you it's still being viewed today on you tube this is after barber caught the sixty minutes time this was after the statements that are posted to youtube and on the dedicated website are after the remington under fire show in two thousand and ten that was sixty minutes no that was this that was the c n b c show in two thousand and ten that's the subject of this the the initial statement that remington made was privileges to as far as the fair reporting is also a conditional per village and the court should note that under montana law there is an absolute privilege for pleadings and statements made during litigation that's a that's under subsection two of the statute subsection four which they're claiming now is the fair and true report of a prior case of a case and it's that's no longer being by any state that that of someone stands up on t v and says the companies a company is doing something wrong and harmful that the company's got to have your honor i think everyone has a privilege to respond and i think everyone has to stand up and defend themselves for the truth and i believe that that's what the barbers are doing in this case i think your honor