you all seem so far away just this one we appreciate you having us here in birmingham well i'm just so excited to have you and judge rosenbaum here and i just want to take a moment if i may to welcome both judges martin  vaughn to this court i'm so proud of my city and so i'm proud to show you the city in the bar and i'm so proud of you and so i'm proud to show off show you off to the bar and so i'm just glad that we were able to make this work and i appreciate your flexibility both of you and traveling here for the the argument delighted to do it and we think it's we've had a wonderful time these kava cases are complicated to schedule and when i was a district court judge we could all be on the found together trying to schedule these things and it just doesn't work that way in the court of appeals so we realize there's been some cooperation on the part of the parties and we're very appreciative about that exposed quote separately repetitively can i ask your question i certainly understand where you're going with the sort of the procedure will ramp up and it's in your interest to suggest to us that the plaintiff's claims are disparate and sort of hard to kind of get your hands around but before we get there and we will but before we get there can we talk a little bit about the burden of proof certain the parties don't brief it extensively your position is that this event or occurrence language is defacto an exception so that the plaintiffs have the burden i guess my question is isn't it really an exclusion it's a little bit more fundamental than an ordinary exception right it's not something that sort of takes the mass action definition as it exists and then something out of that the event or occurrence language actually definitional changes whether it is a mass action and has that changed in any way shape form or fashion the burden on it is your burden to show that this is a mass action you don't deny that and so doesn't the event or occurrence language say this isn't a mass action and so why isn't it your burden so your hon exclusion of chapters diction this is also an exception class of the burden of showing that this is an event or carrots and yet certainly walks and talks and quacks or whatever like an exception i just wonder if there is some difference and i don't want you to feel like you get hung up on this i wonder if there are some difference between an exception and a definitional exclusion where this one says you know the term mass action shall not include so like it's almost like it preceded an analysis of true exceptions straight but anyway if if if you were to win what would prevent the plants from climbing the controversy exception which is not before us today this didn't address that issue as order because that exceptions as well getting back to judge nuisance question it does seem if we don't go to the legislative history we're just looking at the structure of the statute itself and if we're just looking at the language it does seem like this is an exclusion i mean what would be the reason why it would be set out in a different way than the exception i think it actually is set up its i'm sorry did i just get back one more time that i understand your position is that it is an exception to the mast action but my question for you is why  to address again the idea that a mass action should be heard in federal court except those facts actions that are truly local in nature and that's beck and foolish that history true like the local in nature to a local single event with no substantial interest at back to be tried julie that i don't want to i don't want to use the fire time just one last question but why i guess my question is more fundamental why do you think it could not apply to a class action if it had been put under that section it wouldn't certainly in the blue brief you seem pretty wedded to this theory that a single event is like a particular moment in time but this is the word i mean you're sort of importing the word single in the text and i get that it has an  but doesn't that really just sort of beg the larger question of like what what is an event or an occurrence i mean an event or an occurrence isn't necessarily just a single moment i mean a football games and event right now standing back you have multiple players and plays and collisions and potentially injuries that result from different sort of circumstances right but that's still an event sure but if the football game would be a single event what we're looking at here is the equivalent of bowl games over an entire of what we have when we look at that is a number of different conceptions of that now is like the court's indulgence and break with through one particular case that deals with three different conceptions of what constitutes a single that are perm cold i mean just thanks on everything we know about the statute the exception that the plaintiffs are trying to travel under would apply in the case of a toxic spill do you agree with that and i mean sometimes we know that those can go on a little while before they get discovered but that doesn't change your view on that it still would fall into this exception that's correct in  so far they say well you know if you've got the requisite number of people and if you want to go to trial to get over the common question of law or fact you are a class action so there is a differen so your point is that there is a difference between an exclusion or an exemption as you call it an exception the exclusions would have run to the definition of mass action in the st instance an exception is something that sort of like happens later once mass action has been determined or in fact as you know section two expands original jurisdiction in federal court or what class act and it most certainly expands no question about it but a ma what we've done the structure of the law on hearsay hearsay has both exclusions and exceptions right i don't want to this is not a quiz but then three nato four we have exceptions to hearsay right somebody says hearsay exception however my understanding anyway is that we as a quirk and i think courts across the country have treated exclusions and exceptions the same way with respect to the burden of proof the proffering party has burden of proof under votes which makes me wonder whether there is this chasm of difference between exclusion the exception i think there is a distinction and i think it's a real distinction and i notice that there was a recent case that came out  that does not lead to that conclusion he only said that he could confirm that seventy percent of the pain were around that product that thought so you know our position is this point as a compl which is fine to have one last burden of proof question especially i mean even in the in the explanation that you just gave it seems like the knowledge of the event or the current ness if you will is more within your sort of head than it will be the defendants and so i wonder or about so the fairness and efficiency of placing the burden on them typically to be defendant seeking to remove typically it'll be as also as you know exist for the worst lives of discovery on their six questions so in response to judge martin i mean isn't that the hill that you have to climb comes from the fact i guess that you've got you've sued multiple defendants on multiple theories design manufacturing labeling numerous different products difficult to tell from the complaint whether the products themselves were the harmful substance or combined to form a harp harmful substance you've got people working in different parts of the factory over the course of two decades so i think their position and i'm just interested to hear your reaction is that that's just to kind of like what we were drawn to do but one of the things that we did was we did not use the word of an arc you know that is a conclusion after looking at the complaint but what we did is inescapable in my judgment if you read the complaint if a person reads it and you look at the allegations against the defendants it comes to the whale breaking the exposure i mean we're injured from the exposure and there a enough facts to survive but i guess right i mean the the well ruptured the land flooded those are sort of like culminating events right i mean do you have a single  here or is it just over the course of twenty years there were chemicals that passed through the foundry that either own their own or in combination formed hazardous substances that harmed different people that's exactly right and  suing the employer here for obvious reasons but there was a single defendant in the range of guns and the problem one of the problems i think is that you've got ten different defendants all coming in and out at different points in time and all having different kinds of products and things of that nature which makes it seems to me to make the analysis different than if you're talking about one defendant i'm sure it's not random but you know i mean in some ways it has a random aspect you're just picking two years out of a continuous period of time how does it make it an adventure occurrence when you're picking these particular two years you could  for my purposes the difference is that there you do have like some sort of culminating a vent that you can sort of get your hands around whereas here i mean it seems like if you want to lead a van or a current involving multiple especially designing said that the failure to update was that the failure to abate was the failure of the factory owner to abate so in our instance it would be your failure to a this exposed you know you had a lot of opportunities and you never did it but i guess i don't mean to like hang up on your time but i mean i guess it's like i have to defend one your failure to update your product defendant to your failure to take the words  alleging one specific course of conduct not multiple defendants in this case nine defendants there were ten now not alleging multiple different product sales different failures of labeling different failures to  that casey also cited and of and also cited abraham cases like this ask you to follow and consider those two in connection with seven consolidated actions again with multiple things i think that case was around six or seven quote the court finds the emissions of odors in chemicals very sources would have caused by various failures on the parts of areas that in spite of alleged at different times over a period of years does not constitute a single focused event such as go back briefly and talk about the plan in vocation favor which i think is interesting one quick question that and i just hadn't thought about frankly when i walked into the courtroom what about mr prentice point that you know this was a complaint filed in state court sort of the rules are different and now we're sort of nitpicking this thing now that we're sort of temporarily in federal court where we are we're not necessarily nitpicking the pleading