good morning may it please the court my name is stephen warshaw skin i represent the petitioners the defendants below who are seeking a writ of mandamus directing or rather overturning the district court's orders directing the appointment of a court appointed expert witness those orders were issued after the conclusion of the bench trial in this case sue is spawn today and in response to the defendant's motion to strike the expert testimony of the government's retained expert if you look at the record we had a bench trial in october from october fifteenth to october seventeen and at the click conclusion of that trial the district judge issued an order that afternoon saying the evidentiary portion of the trial is concluded and i'm ordering the parties to submit a post trial briefing as to what has and has not been proven and so forth that very next day the defense filed a motion to strike the expert testimony of the government's retained expert dr charles flexner which was offered in rebuttal and in recess and then we briefed motion but instead of ruling on that motion one way or the other the district court sue a spontaneous issued an order to show cause under federal rule of evidence seventy seven zero six a as to why the has discretion ever under seven zero six but it's not absolute and it's an abuse of discretion in this case for at least three reasons number one because the order was issued after the conclusion of the bench trial after all the evidence had been submitted and so the judge ordered that if that's it you know is assessing the evidence that she's received and decides that she needs help because this is technical medical matter about universal precautions and so on why does the timing of that make it beyond her discretion well because in this particular case the information the judge said she needed assistance with was the very testimony of the government's retained expert this was information that was offered in impeachment on rebuttal and was not central to any of the liability or damages issues in this case what happened was we moved to strike that testimony and the court appeared to say well maybe i should find another way to get this testimony in and so the second reason why this is an abuse of discretion is because the court appears to be using the the well it's only it can unring the bell it's not an adequate remedy in full because when the court appoints an expert it requires the parties to pay for it and this money back if if we reverse you worried that the united states government will reimburse i respectfully disagree i don't know what mechanism there would be for the defendant to get its money back if on appeal first court reversed that decision you don't know if you're going to have to the court has indicated that both parties are participating in this puzzle but you're going to have to pay specifically no but we know we're going to have to pay a hundred my own view is that would be an abuse of discretion on his shoe i think it would be an abuse of discretion for the district court to charge the government with the full or substantial cost for this court appointed expert in ohio the government so the court is going to likely split the costs and those costs are going to be at least ten thousand dollars to each side knew or are you sure go ahead i politics i understand your get your argument about abuse of discretion i guess the argument of are and on and  twofold that the order was issued at the conclusion of the trial after the district court itself recognized that all the evidence had been submitted and secondly the order is expressly intended to provide substitute there is real is harm that can't otherwise be remedied and the harm in this case is going to be the amount of money that the defendant is going to have to pay for this because there is no mechanism just whereby that money will be reimbursed seek a stay of the payment of that pending appeal well the district court so sponte has stayed the action below ten on a no that's not what i asked you if you lose here and you go back and and the witness and and you go through it and the court orders that you paid could you see stay well i suppose you have to well i think that would be a very difficult thing to do because like court appointed expert is entitle to be paid the judge is going to order us to pay it now it would be unusual for the judge to require a court appointed expert to do work without getting paid and so we could refuse to pay it but then we have a contempt problem that's not a required to requisite to seeking mandamus i'm sorry if you raise the payment issue i raised yes we raised the payment issue in our objections to the original order to show cause in terms of it was unfair to require the defendants can subsidize that and at of this shouldn't be done but in any event the government should be the entire us if that's your principal we could we could take that position then the government is simply going to argue that under the rule that would be an procedures distinguished member of the bars on you could fashion arguments at this cost should not be borne by the government and then you know if you don't prevail we're always open for business thank you i think we have the arguments we'll hear from the government  they have asserted is cost of litigation which is never a irreparable harm and on that basis alone this court should deny looking you could you could you address the issue of cost though i mean the could be significant costs and we have no idea how much they're going to be counsel doesn't typically my understanding is that they are shared by the parties and that you know if your adversary were to prevail later on with his argument that this was an abuse of discretion what remedy to see have to recover those those costs which could be significant for an individual so though the cost could be significant we  sure at this point what the remedy may be given the fact that the district court can order the splitting of the fees in any particular way however if that is an order that is appealed but to this district to this circuit proposition that all fees can be shifted to the go depending on how the order is structured and how things transpired or as an abstract principle as an abstract principle i don't see with all the cabinets that can come from the for the application of an abstract principle to a specific set of facts no the government doesn't does well the question to it's a simple question if the judge worded split the fee and i don't blame your partner for complaining i mean he's got a client and he doesn't want to have to have his client pay those fees i don't i don't play i've offered to be upset about it especially since it's your your expert that seems to have generated the need for there's no wa take it easy take it easy i hate i could see so say the district court says fifty fifty fifty and and it comes up here and this court says now that was an abuse of discretion it should all lie in the government's it was abuse of discretion or the expert can be issued all a cause should lie with the government or you have the view that we're without the authority to do that no i think are you of the view that the government somehow has the ability to resist our word or who are directing you to reimburse your opponent for fifty percent of the experts fees short of some sort of legal or no it but i do want you sure i understand that procedural  the defendant's defendant dr provided testimony which was effectively expert testimony that we had not been disclosed to us our expert was in the room listen to that testimony and proceeded to take the stand to take issue with statements of the testimony that  the defendant had made on direct and cross we would held them in abeyance for specifically for that purpose and that's what he testified to after the close of discovery i mean start after the close of evidence at trial the defendant she should not point an expert under seventy six to give her guidance about the issues that were debated between the plaintiff's expert our position witness and your expert is that correct your honor so the procedural posture is that we have two sets of expert statements that are being made and the court and the court hasn't ruled whether our expert is getting excluded or not but the district court has now is planning to appoint a seventy six expert in order provide testimony on the topics in which there is disagreement all about blood it's about blood test universal precautions as to whether the the defendant has imposed a discriminatory practice to  fellow gets on the stand or your witness gets on the stand and says no that's not the standard anymore because of precautions that can be taken with regard to surgery blood typing in the presence of a child the orange i b m digits are no longer  relevant with regard to invasive surgery the type of surgery that the plastic surgeon has be performed correct correct if the court has no other questions for me i think we have the you both so i will proceed to the day calendar now the first case is gale versus chicago title insurance number seventeen thirty four ninety seven they have to proceed it's just it's please thank you i may please the court my name is matthew since you with me as my colleague jessica colombo we represent the plaintiff john gale in his law firm the issue in this case is whether a plaintiff who amends a federally followed complaint to your honor there are a few reasons why rockwell doesn't is not an obstacle here and i would actually call it invert the the idiom rockwell is is really a sheep in wolf's clothing generous it's also supreme court yes yes absolutely but but here's so here are the reasons why first of all let's take the proposition that rockwell says we look to the amended complaint to assess jurisdiction what the amended complaint in this case says is that this is  was followed as a class action and that there was jurisdiction of the outs of the litigation what matters is what does jurisdiction require so in iraq well it was a federal question case was very unique because it was under the false claims act and it was under  original source requirement of the false claims act which at the time was just optional and the false claims act said to be an original source you had to be an original source of the allegations in the case well what were the allegations in the case the supreme court said well they were the allegations of the original complaint as amended you couldn't be an original source of only allegations contained in the original complaint and not allegations contained in the amended complaint which in that case were actually the ones that tried  and say that you have original source status so what was required in that case was not met and in this case what was required was met with you do you have any did this is a form of diversity jurisdiction right correct or do you have any cases in which it say the diversity jurisdiction cannot be amended away i know that you know if we have diversity at the very beginning when a complaint is filed that if a plaintiff moves then and diversity is destroyed by in the same that you based on the same transaction or occurrence what have you but he meant a complaint does not adequately support diversity jurisdiction do you have any case saying that diversity nonetheless  persists i'm going to answer yes although with the carry out which is that i think what's important is that the amended complaint has to show the jurisdiction exists but the question is how so let me give you an example in this court in blank i could be the case yes it is the amended complaint doesn't have diversity well yes so so let me let me give you a blank was a case in which a canadian citizen was a plaintiff along with a new york citizen they sued a new york  company the basis of jurisdiction in the original complaint was admiralty was a kayaking accident subsequently the court concluded that there was no admiralty jurisdiction and so what the plaintiff sought to do was a man to allege diversity jurisdiction and also to to remove the non diverse new york plaintiffs so what was going to be the case was the canadian citizen was going to be suing in your company the only problem was that subsequent to filing the case the canadian citizen who become outset there was jurisdiction so even though if she were bringing that case afresh at that point when the amount a complaint was filed she couldn't start that case in court at that time the amendment was proper because she could allege that she had been diverse at the time the case was filed and this is exactly the same paradigm we're we're here the allegation in the fourth minute complaint is this case was filed as a class action under cafe and a rule twenty three it met the standard place i don't think so you are because what you just described would still not be allowed it's not allowed today as as i think many courts have right that what you did was not what we did because we actually we actually moved for classification obtained a class that class d sort of and that with was withdrawn five thousand dollars and then you say well we were wrong it's really only four thousand if it was wrong at the outset that's then and that he was the court never had jurisdiction to begin with but there's no allegation here that the allegation of the amount of controversy was wrong when this case was filed it was right in fact the reason why the case was decertified was because of a change in the law as a result of walmart and the defendant saying that the monetary relief sought was not incidental it was too much so so so i think this case actually falls within the ambit of cases where you have a good faith allegation of diversity jurisdiction that is true at the time there are subsequent events in the course of litigation in the blanket was that party moving from one state to another here was d c certification by the court where the case was no longer a class action at that point and so what wal mart had was saying you're not entitled to whether well it may well be that you had that your legal theory got cut off from underneath you but that doesn't mean that it was legitimate when you first allege that well your honor but  that's a different that's a different animal knowing and here's why i think when you look at the all the kit all the circuits to wal mart were the law at the time you filed your complaint would you have a class actually i think we would have we would have had to proceed on a rule twenty three b three  but let me let me address your question treacherously i think i seriously question whether you're a legitimate class actions it's well that understand that you aren't but there the case last clear that irrespective of the reason why a court denies classification accept the court's decision you mean at the point of decertify at the point of decent dispute that mere fact the certification deprives the court of not the court correct nobody disputes the court retain jurisdiction of that point so that so we're talking about this very formalized argument that this court rules that's going to that's going to dictate what the answer would be going forward and that's a fair point and i understand that i think i want the court to get hung up on the voluntariness because i don't think that's the critical assessment i think the assessment is this is the context where there had been a class action that was brought in federal court it was prosecuted as a class action nobody can dispute that nobody can dispute as a class action that the aggregate amount of controversy was five million dollars the district court then ruled now nobody disputes that at that point the co jurisdiction and it would have even if at the moment the court ruled we said ok judge we're not going to try again what the defendants contend is simply because the amended complaint reflects that fact that the court lost restriction of that point and i just do not believe that that's when the an amended complaint that is filed if you start with a fed complaint that has both federal a federal question claim and a state law supplemental can address not a diversity rule well we have we have kaffir has a lot of different characteristics and you know it does come under the diversity statute nonetheless it has some and in touch to describe it doesn't amount to diversity i think it should be viewed in the context of diversity and i would ask the court what happens if we did exactly what we did amend the complaint and then we the point of turn around and said judge now you've lost filed in federal court in a way to abuse from a court restriction as i think one could conclude in the in retouch case and there's no contention nor could they be that the amendment in this case was some sort of effort for manipulation but we need to have a clear rule i think what we look to in determining jurisdiction and what context and we're not going to examine the parties intent all the time we look at situations that provide a possibility for abuse one way or another understood and i think that there's i think it would be a mistake to try to draw a bright line rule that anytime there's an amendment that's it if you look at this court's reasoning in the tongue cook case for example which was a case in which the court said that that the legal in possibility of recovery at the outset must be so that currently exists your honor which which which looks at the gives the benefit of the doubt to the plaintiff in alleging the amount in controversy and diversity jurisdiction and in the tong cook a says if it was legally impossible at the time then negate it so obviously if the point of comes along and says i'm from new york in my adversaries from connecticut and it turns out at that time that was not true or the plaintiff amends the complaint and says actually that was not true the court never had jurisdiction to begin with if the plaintiff comes along and alleges an amount of controversy over the jurisdictional threshold and ultimately is unable to prove that amount the case is not dismissed if it was possible that and pled in good faith but possible not legally uncertain at the time it was pled that that was the amount of controversy that it's accepted the court looks to the amended complaint to establish jurisdiction do you agree though that they had meant their complaint that the court would have continued to have tourist action yes so the amendment of the complaint is the pivotal point remember the complaint and also what 's relevant here is is that is the way that the collapse of occasion ruling was handed down it was not with prejudice it was without prejudice it was also without reasoning it was unclear what they needed to do to amend their complaint to satisfy plaintiff withdraws the jurisdictional allegations withdraws the basis from jurisdiction from the complaint the case should be dismissed unless the plaintiff then puts back other replacement jurisdictional allegations so when you withdraw the basis for jurisdiction and don't here addressed rockwell and then i'm talking specifically about in touch concepts albeit in dicta dress this was civic circumstances presented here and my specific circumstances on record referred to three factors the first factor is a claim filed in federal court case the second factor is a capital case a case where the jurisdiction is based on a class action fairness act and the third factor is a case where in an amended complaint the point of withdraws the class allegation destroyed the basis for jurisdiction let's talk for a minute about the circumstances of the amendment of the complaint because it to me like there was a sandbagging element here based on what the transcript showed that no amendment was strictly speaking necessary to go forward the district court said it's not really necessary but it looked like counsel for chicago title that may have been you kind of insisted on having the complaint filed that conform to the district court's ruling that they the case been pending for so long without actually looked like they just court was you know eagerly awaiting settlement discussions take place in years had passed and were to clarify the legal issue you all pressed the plaintiffs for an amendment of the complaint rather than just allowing them to say ok we were going for an individual basis which the court's rulings had limited you to in any event  should we in for a measure of bad faith here that would overcome some of the arguments you're making respectfully i don't believe that's an accurate recitation of how this went down in when in two thousand and twelve when the court to certify the class the court said specifically to everybody well to be clear i don't mean to apply no class should ever be certified on any issue in this case and further went to one to say i just want to assure the nobody misinterprets member willing i'm not taking a position now the classification is not appropriate i'm simply do certifying the class and allowing for the possibility that emotions are certify might be filed down the road with all parties understanding that in two thousand and sixteen for four years we were motions no action there were motions pending that the court had ruled upon there was action there are motions made on standing its ground and another motion practice during that time there was a decision of the parties waited for the plaintiffs were restless and did not want to have to live by the one way intervention rule have to wait for the sequence emotions so on their own volition they wrote a letter to the court saying we're prepared to abandon our damages claim and move forward exclusively in our individual capacities and then this is critical at the at the subsequent court conference on march ninth two thousand sixteen this is what point is counsel said so the question that was left open was in fact coming back and removing under b three so the class allegations are in the complaint the intention is once the standing issue was removed to come back in to be free motion what we're saying in this letter is that the possibility of that occurring was something we were taking off the table we discussed this mr gale he understands what we are proposing which is to withdraw any form of class allegations withdraw any their complaint to remove the class allegations and they did that's reading the transcript mr newman said that's the first order of business mr newman is who first american council yes she says the first order of business as we said in a letter to the court is for the plaintiffs to move to an end file that we have an opportunity to review it see the claims that are then asserted that there is only equitable relief and then we go forward that will be the fourth and complaint and the court says that's not strictly speaking necessary and then they go ahead and do that was your saying that was their idea to begin with and so there was a letter that preceded that that's in the record where was their idea from the can from the action and i think what was that back to them the only way to actually remove them from the action is to amend the complaint the idea to move forward without the class allegations was their idea no one told them to do anything no one instructed them to do anything no one was being held hostage this was a decision made there was a dialogue back and forth what it means to remove class allegations from a complaint and that is through an amendment but no one told them to do it or persuaded them to do it you're saying also that even had they not a without prejudice but it is the act as the court makes clear in rockwell as the this court makes clear in the touch the act in an amendment is an important event it resets the allegations in the complaint the court looks to amend a complaint which supersedes the original  would this is this is a change in the allegations with regard to the complaint correct it would be like it would be like saying i wasn't that i'm a citizen of new york but i've done i was wrong i really am a citizen of connecticut and there's no diversity correct and i think that far what do you think the options were with respect to amending the overall options obviously they have the right to appeal and they have the right to gang in federal court decides that judges really like their case and so amends to eliminate the five million dollar element for example and gets himself kicked out of a federal court so he can try again to be in federal court or state court he would have started there would me media's have to start a federal court with a five million dollars client a plaintiff great line of consumer class action wherever they wish to do so it might be removed perhaps by by defendant under kaffir but if a plaintiff wants to start in state court that's where i was going up in state court they could start there can't correct because the courts have been very good we're not one could also start in federal court or start in state court be removed or start in you remove all class allegations from the complaint you no longer have a basis to be in this court because caffeine is diversity but it is a special kind of person is based on the nature of the claim if the nature of the claim no longer exists it is no longer a class component to the case it doesn't belong in this court well unless unless you can make it regular twenty three three correct and they had an opportunity to move for certification again they specifically and on their own volition took in their own words took that off the table even though opposing counsel calls calls that trying to insult by calling formalistic amended complaint is not a mere form over substance it it becomes the substance of the case and they have no longer have an opportunity to certify that they cannot appeal the original was well obviously your honor we didn't appreciate that this would become an issue we didn't appreciate that this would become an issue on your honor i we our position no understood and whether that whether we should have appreciated this would become an issue is a difference but i'm answer question as to why why was because from our perspective everybody agreed we were at that point allowed to continue to pursue individual claims the defendant said well to take that to putin class nature off the table which would obviate this one way land and as a result they had the right to avoid an adjudication on the merits before class notice under the one way intervention rule this was sort of the stumbling block and kind of i think was part of the reason for the delay but in any event to take that issue off the table and a s they put it to help them decide what resettling they said we think the first order of business is the man the complaint this is your adversary correct that you first proposed this in a letter to the court we did not propose amending the complaint what we said to the court was after d certification we had expressed an intent to try again we didn't have to do that and i don't think that my adversary is saying that the court would have lost restriction if at the moment to do survey cation said we're not going to try again but we said we're going to now you're right right and so the reason i say that's important is because we what we took off the table was we're not going to try again and we didn't say we're going to do it by way of a man we just we're not going to try again we're going to we're just going to proceed on the individual pledge right now we do write we did write a letter and then it and then the defen let me let me just i know i'm very short on time so let me address what i think which was to say that in this case this is sort of equivalent to us saying we were wrong that's actually not true this is not a diversity case we come in and say we were wrong we weren't diverse or we were wrong we didn't meet the threshold no no no we allege in the fourth american plane we were right we brought a class action and nobody disputes it really was a real class action not an attempt to manipulate the forum we alternately lost and we acquiesce to the judge's decision important to consider that this is in the paradigm of diversity and i think judge kerning your concern about what if this invites a plaintiff who files in federal court wants to be there and then down the road finds things not working out so well can just amend the class been jurisdiction at the outset that's not my hypothetical that might have had grounds to understudy good faith cafe allegations that you decide you don't really want to be there things aren't going well so you just amend the complaint it and so you kind of effect reverse removal you get jurisdiction but by simply taking away the class allegation when it was in good faith at the time that it was brought and there's no dispute that it was so that the issues of form manipulation go both ways and i think at this point now we have an attempt at forming  defendants thank you thank you very much thank you for your arguments will reserve decision the next case on our calendar is national union fire insurance vs garko marine services number seventeen thirty two eighty six and manning them and running out the storm could you address the district court's finding that there was an agreement for gar pro to haul the star for repairs before the storm the district court found that right on the wednesday before the monday storm there was telephone conversations between the owners and between and garko agreeing to do a repair work and agreeing to let the start be dropped off over the weekend saturday or sunday and to me that leads to the notion of i b l meant that there was an agreement to do repairs there was an agreement to drop off and it's in your position that those that find the fact was clearly erroneous  after that conversation she spoke to the coast guard including get a date as a coast guard and if you never calls go up a back to firm up that agreement we were never able to confront during with the fact that she called intensively discuss having heard some of your arguments about the merits of your testimony but it found still that there was an agreement to do the repair work we didn't get a chance to confront mr farrington with the fact that she had testified at a deposition that when she called the coast guard she couldn't get a date show how can she bring the vessel to to gobble when she didn't have a firm date from the coast guard which is one of the reasons sting the finding that there was an agreement to drop off  understanding is that that would be enough under an apple two law for a bill meant to be created in which he said he was going to drop off the a vessel and he did so pursuant to the agreement and then the burden shifts to the believe garko to dispel a presumption of negligence when the vessel is injured drop the vessel off on saturday or sunday even if you accept that there is an agreement to drop the boat off on a shunt like mr farrington tied about up where he wanted he told up he locked it he took the keys he left he testified he was going to come back and get the boat but he essential if what needed to happen was in the ordinary course without the storm the boat was going to be put and hauled out of special lift that didn't require use of the keys at all that was consistent with the yes the boat would normally be the fact that the boat is locked does not in any way indicate that your client didn't have exclusive control that wanted to put it up on dried out what the weather intervened with the other elements of belmont that was not when you drop the property off there's an exchange and there's delivery the boats there and acceptance that the claim was that your folks had agreed to nobody there to take exemptions required or all thing or could it be pursuant to i say to you it's ok to drop your boat off at wesley marina sunday i'm not going to be there nobody's going to be there but just put in the slip number one it's ok basically two factual narratives of the judges to try in fact determine that the factions version was more credible and was more logical that there was an agreement that was reached the wednesday before keep in that sandy nobody knew sandy was going to actually take the path it did on wednesday before the storm so the they made the agreement and it was the agreement to bring the boat over for repair because this is a long time customer and they made the agreement to haul the boat before the storm before monday everybody knew the storm was going to hit a monday and so they brought the boat boat over on sunday agreement was there and there was also the phone records keep in mind that the garbo personnel it's they say there were no conversations at all the week before they also say there was no conversation that monday when my clients called concerned about boat wanted to make sure that the vessel was hall and they told them the vessel was going to be hauled but that they would secure all of us vessel and protect us let me ask a different question my understanding from the record is that if the shipyard had complied with its agreement and halt the start to dry land if you've been able to do that sunday afternoon or right after the vote was dropped off for example that nonetheless because the storm surge was nine feet and the boat would have been up to on blocks and then up another five this vessel still would have been lost is that is that supported by the record well first of all they don't work on sunday so the best couldn't have been blocked one could of course have in fact worked on sundays given the input but they don't but they don't they didn't work on sundays and i don't think that if they had been able to on monday morning it was had dropped off sunday afternoon they came over early monday and they hauled it they did what they were supposed to that the court found the vessel still went been lost because of the nine foot stored storm surge which no one foresaw no but the court did get the vessel was going to be hauled until monday morning mr garner was aware of the storm surge on monday surge it was the winds the sixty nine to sixty to ninety mile an hour winds as well as the direction of the winds and that vessels sitting there at that small dock which was never used and a bit by my point is if they had actually hauled it what the had agreed to do was haul it up on to it and put it in dry dock to repair that jets if they had done that which is what they had agreed to as the court found the vessel still would have been lost because of the high and unexpected storm s will never know but they wouldn't the vessel was not going to be hauled until monday morning that was the point and ask you had they hauled it on monday morning it's possible your honor it's possible it would have been lost if they'd hauled it monday morning on two to three foot blocks but there was other vessels there were also hauled blocks and weren't floated away either other another measure i get the pontoon dock was full but another measure that was suggested was that even with it tied up to the the second appear that they could have used lines to secure it to the pontoon dock is that right yes that was that that was a feasible alternative that they didn't even think of the bottom line is mr gardner didn't think of anything to do with it he saw that the conditions on monday morning he was well aware of the danger that doesn't that look a shit but he did nothing that's what the court said basically did nothing there were alternatives at a minimum he should have called farrington's and as he testified there was a vessel in another yard that basically there was no spot for it so they basically just ran up and down the river during the course of the storm and that's and that's enough vessel stayed stayed safe if they had done that at least call the individual's call the ferry since they could have come over why wasn't that on the farrington's too to be checking on and be aware of i'm sorry why wasn't that obligation the farrington's chico's when they cloud the vessel because when they called monday morning they were given assurances that the vessel would be protected and secured and this were no reason to come back and i do take issue with mr carbons testimony or of his recitation of the evidence that the testimony was pretty clear that mr frankly did not come back up based on the fact that he was told that the vessel would be secured and protected that was the reason he didn't come back regarding the keys that's essentially a non issue because as judge leslie said they didn't need the keys to bring her into the  his treatment of the vessel since the time between in the time between when c we was made to do the repair work and sunday the forecast becomes so much more dire and he just left the vessel tied up in a very temporary  circumstance well it wasn't until it wasn't until the weekend and actually until monday that we knew that that this storm was going to come in exactly the right direction it came in and the surge and he basically is just relied on the representations of the garners that the vessel would be hauled and i you know it's it was that reasonable reliance because because there was because there was an agreement your honor as you pointed out earlier there was an agreement to haul the boat and it wasn't all there was an agreement that they would you know i'm asking why was it reasonable to rely on that we need dropped it off in the shipyard with no one around in the forecast between the wednesday when the agreement was made in the sunday had gotten sent dire but your honor they called monday morning and that's another factual finding that the judge made that they call for wanting to know what the star status of the boat was and at that point the yard told them they will take steps to secure and protect the boat there was has primary responsibility for t k ridge boat what is cas agreement as to what it was and the judge found that didn't find the judge found it your your client made assurances that the boat was going to be taken care of and that's why you are needed to come back and that's that regardless of what you did the boat was going to be destroyed absolutely ok because number one the court found it was an act of god which puts the burden the point gaap will show that they're not responsible for the presumed iseman the final matter on for argument this morning is baker vs striker corporation every eighteen eleven eighty eight implant that well that was effective nor could they have not it is physically and scientifically impossible to know as all of my doctors would testify one has already created an affidavit to this effect in the frantz documents repeated references made to discovery beginning with the original surgery when sentenced when that damage began a proper discovery needs to sort these details mr baker yes i'm sounds like you've had a very rough time with your job and i'm very sorry to hear it could you say when you very testimony and so question well let's get him a c given that the have a law which won't listen i'm traction i raised to which she observed no apparent consideration when i saw him in january two in the context of information from another doctor that i wouldn't run the risk of  brad and overlap condition when he had no knowledge what so ever it was a baseless speculation about it being a possible  he had a personal prejudice against any possibility of overlap being used for the same plants as own personal design u may please the court my name is paulus and this i represent stryker corp the defendant appellee and i'll be very brief we all know that mr baker has suffered and had an unfortunate result from his surgery and  i think it has apparently resolved at this point although he had years of suffering this though is a straightforward application of the statute of limitations in new york and the rule is and has been for over thirty five years that in a medical implant case that does not involve blatant exposure to a toxic substance the statute of limitation a cruise on the date of injury itself and i think based on mr baker's own papers in the complaint we all know that injury occurred when this allegedly myside mr mentioned implant was placed in his in his jaw and impinged on the muscle and that would have happened on the date of surgery in two thousand and six is consistent of course with testimony that as the numbness from the surgery wore off the pain manifested itself more and more but again all of this happened in two thousand and six so the pain lasted seven years i don't think there's a question in the record that the pain that started in two thousand and six was the same pain that eventually result when the implant was taken out in two thousand and thirteen it's not operative when mr baker discovered the cause of the diagnosis and so for him negligence and strict liability it would have run the statute of limitations in two thousand and nine and implied warranty is four years from the date of tender which could not have taken place later than the surgery and so that would have run in two thousand and ten if there are any questions i can answer them on the whys of it i think we have the arguments will take the matter under