argument for ten minutes and then allow my co counsel to to make rebuttal for the remaining five minutes ok travelers brought this action in the district court under a pennsylvania statute of course the uniform a contribution act which outset we also believe that certain provisions of the restatement of second receipt and second of court which have been followed by the state courts and by this court are relevant in those relate to the fact that in some circumstances a portionment of harm is appropriate where there are distinct harms  where three negligent physicians all treated and arm and the arm was left with a permanent injury and the the plaintiff was unable to say which malpractise which i believe the case that with the hypothetical that you posed is one in which it's not foreseeable and really extraordinary if you will that the subsequent physician cut off the arm or the leg and unlike our situation where the negligence of the first two were tourney's in initiating a murder this rico act and in continuing the rico action was deluca created well i think that that when looking back which is a proper looking back from the default judgment it was certainly foreseeable from the standpoint of mr that their decision and their advice to their clients to again begin the action and to continue the action was a foreseeable result their negligence was of for c of lee caused the lawsuit do the consequence but the loss of the lawsuit may not be do you acknowledge that the sanford's had defenses to the dragon and he says in the words of the of the third attorney who was deposed he said there were have to say don't you have to have us believe that there were no defenses you know having to succeed because then the injury flowed directly from the filing of the rico complaints and there was nothing anybody could do so that indeed deluca is actions weren't intervening don't you have to you have to have that in your arsenal i e that there was no way they could fight the dragon and he says first of all your honor the underlying action is the call malpractise so we don't we believe that the that the merits of the dragon any action or what might have happened or really elevate the only questions are whether of the three elements of the legal malpractise case which we believe have been met in this case so i don't believe that proof of the eventual success or failure of the dragon any action controls that we have to see doubtless that is why we have to predict the difficulty of this case is all to fold the case within a case within a case we have to predict first of all what the present a supreme court would decide and this question as to whether or not liability under pennsylvania law if liability could be apportioned among the toward features you would lose i believe i believe that is true although that issue is not is not before all right that's a different answer right right right and then your honor what's the third the third is what's your best case an offense a law our best case under pennsylvania law is that we pursued proceed under trial so that activities or conduct that are several in time and in a situation where there were arguably two way injuries or the aggravation of an injury going back to judge barnes question the pennsylvania supreme court went through the principals that i that i began to discuss and said under these circumstances we believe that the two are arguing toward fees or as and that and that the procedural circumstances were somewhat there death well that's right i think the other side argued that under the crashworthiness however in order to make a claim of a crash worthiness there has to be a there has to be an enhancement of the injury so that's i think what the supreme court of pennsylvania was in a case in the middle district had no difficulty arguing that that a negligent now that legal malpractise is a proper claim under the uniform contribution of under the under the contribution at his arm for us is court has decided well there's there's i mean that the president this clearly the contributory negligent act talks about physical injury or the or the delayed damages rule talks about physical injury and we think it's pretty clear under a traditional understanding of injury that that includes not only physical injuries but any invasion of a legally protected right which which a legal market just like fraud or deceit which is covered under limitations that you know the thing i was going to say your honor about harsh versus is the supreme court i think look to the equitable principles under contribution and said that this is an equitable doctrine it's not a recovery for the underlying tort and that and that we think the fear result her to is to allow contribution believe my time is up thank you thank you may please the court i am daniel ryan for robert stangl and with the court's permission during my lot of time i will address the issue of whether the parties are joint tort feeders and mr lefkow will talk about the causation issue respectfully runners i  think that the the law is clear here in judge tucker's decision is also correct with respect to her analysis of whether these parties are joint towards these judge tucker appropriately adopts the case law pennsylvania which has looked at what factors are to be reviewed by a court in deciding whether a party is a joint were fees and the voyles who worked in the last regatta court they set forth the factors and those factors contrary to the suggestion by my opponents really haven't changed over the years they have been rejected over the years and in fact they have been adopted not only by the state courts but also by the district court in analyzing this issue why don't you go straight to he different duty owed there's no way that in this situation that when robert stengel was involved in the representation of these clients that he could have foreseen that seven eight nine years down the road there would be a verdict against those clients and in an amount exceeding three million dollars directly cause i would suggest your honor by the default of mr deluca mr to look at one of the questions raised by the court during mr kennedy's presentation was whether or not mr to look at has opined on the issue of whether he thought that there was a defense to the dragon and he claimed he did testified is the position that he believed very strongly that there was a defense well let's let's assume for the sake of discussion  why don't we run i think that the initial question becomes the issue of whether their joint tortfeasor and i think that without question alone they're not joint torture users and therefore the analysis doesn't doesn't follow down the road because of the severability in time of the mr stengel is representation of the sanford he was investigating a claim he was doing research he was analyzing whether it was appropriate to recommend to them or suggest to them that they proceed with the claim he was never entered in appearance you never proceeded with the litigation but he was representing them for a period of time before the lawsuit was filed by the plaintiffs argument would be and he did it terrible chom of a ridiculously bad job to bring a rico case against them or to supervisors outrageous and in any competent lawyer would have known that that was outrageous and it could only result in particularly from an innocent employees in a push back to try to recover monies that were spent to defend them against an outlandish rico claim so if that's it if that were accepted as true that this was just completely over the top why wouldn't be entirely you know for directly following on for for there to be a drag you know the action in there to be a liability on the drug and here we are i think again it comes back to the issue of joint tortfeasor but in this particular case i don't think that the facts would support that i know your honor is asking me to suppose a situation where this was totally outrageous on the part of of mr stengel with respect to his representation i've let me be it's hard for me frankly if he's out the causation forth by the courts the difference in duty the duty with respect to mr stengel representation of the sanford as we discussed was as someone who was investigating a potential claim mr dilute his duty on the other hand was defending that claim totally different responsibility with respect to his clients sure they all had a duty as lawyers to represent their clients well but the nature of the duty in that situation was entirely different one investigating a claim the other defending not only defending was just following th procedural rules so it was to prevent his clients from suffering a default judgment on top of that the the difference in those duties also speaks to the lack of opportunity for mr stengel to guard against the negligence of mr to look there was no opportunity for him to do that in the future now there is a voyles factors but there's another aspect under pennsylvania law where two or more negligent parties acting independently of each other at different times and places may nevertheless be held to be join that there was no defense to the dragon any suit then wouldn't there be here a a single injury that by virtue of the initial actor actions and the inability to look at to do anything to stop it basically it was preordained that there was going to be you know this this verdict so don't we at least in that aspect the merits of of the drug that he says i don't believe so and of course in this case we have mr de luca is just he he took away any chance not only to defend the case to reduce the damages anything along those lines so it's not quite the same however i would suggest to the court that the that the analysis of judge tucker is on point here that she said that this is a different injury the injury that if you're going to say that mr stengel was negligent if he committed legal malpractise the injury to his clients was there loss of the case when the motion for the motion to dismiss was granted by the lower court that was their injury at that time it was a wholly separate injury or an aggravation of injury at least the  tucker concluded and i think appropriately so that the injury was different that the injury was separate or that the injury was at least an aggravation the second part being an aggravation of the first that that takes us out of the realm of the analysis the judgment bell was was was address further supports her conclusion that these parties were not joint work features and therefore there can't be a request or ryan isn't though the crux of this whole case isn't that the crux of the case i don't think so i really don't because i think there has to be analysis of the conduct of mr stengel and compare that with the end with that with the conduct of mr deluca and they're not joint work for users and therefore i don't think that the refuse not mr deluca no your honor i can agree with that respectfully i think that the that the nature of the difference in time the difference in opportunity to guard against the different standards are different duties that were owed in a different evidence would have to be presented at trial a case a wrongful use of civil proceedings case is not in gendered simply by the loss of a prior case it requires proof of that the action was brought without a without probable cause to believe cause and it says if the client relies in good faith on the advice of counsel he has probable cause in other words that is an absolute defense to a drive in any case mr sanford says i stengel and i went to mr barry and i said do i or case and they said you have a case and that's what stengel and barry said that they told you have a case is a district to make a finding as to that was it necessary for the district court to have made a finding i don't recall whether there was a specific finding or and that there was a specific finding that that stengel was precluded from asserting where you'd like this we have to say there was peace and if there was a well i think you have to or you need to say is that the opportunity well entry of the dragon a judgment it couldn't have because the dragon any judgment can happen without lack of probable cause and improper purpose and no defense of reliance on advice of counsel and it's because there was a petition the ria to open a judgment that there was no meritorious defense that is the exact outer it matters a lot but that's not what the court found and i if you want to look your honor at journal joint appendix at three fifty five that is the actual opinion issued by the state court judge he didn't say there was no meritorious the fence he said the he said none the less this quirk considered the amended pleadings and attached answer the answer a new matter stated in very vague and general terms the defenses offered by appellants well appellants need not prove every element of defen kick a guy when he's down but that was the look at the end that wasn't barry and it wasn't stengel who messed up that pleading but we know that there are defenses because the luke in his deposition in this suspected that you have to prove factual cause that is but for a it be happening that you also have to prove proximate cause which means is even if you have factual cause is it simply too tenuous is the line too long from point a to point b to establish legal liability based on that causation you know a lot polls graph so these are not new topics to us but that those rules do apply and and i would argue that and judge tucker greed that the causative link between what kevin barry did and is and the reason is that you have to ask yourself what would the lawyers conduct have if they quit to cause harm what harm was it well the lawyers didn't cause the malpractise case against the luka obviously they didn't cause the settlement of the malpractise case by travelers travelers insured what is the claim that they actually are certain why why do they think they are entitled to contribution of anything they for view throughout the case that berries they say r and if they were if if the lou good and traveler standing in his shoes were sanford you might it might make some sense in for might have had a tell the three of you the facts should all be considered in the light most favorable to us without any weighing of them here at all and so that's why we should focus as i think judge randell mentioned on actually the start to itself the statue and the to come back and bite you and none but if the sanford's were relying on his advice why is it pre determined that when they did that following his advice that they would be i don't see found guilty but they would be defaulted and liable for three million dollars and the dragon and his mistress mr safir was a mechanic by trade mr stengel was a harvard educated lawyer and they've relied upon his advice at that point and when they did that didn't you're probably no it was no it doesn't your on i disagree with that legal conclusion and besides i don't think that's what we're here about today there are cases in say a client even they get better vice from their lawyer are still responsible honor he's it's irrelevant that whole topic we're not hear about it right going to hell with it if it's true it's true the dragon the action has as an element of it that and that that couldn't be satisfied here then how can that not be relevant to your assertion that the bad advice of staying on very full straight through to the life will be considered for the moment it's relevant stronger then i would say i would disagree that that's a legal conclusion  they did even though they got on advice of counsel does appear accord pennsylvania to remember it's not my head that says that but we're not here about that we're here about not writing that which they want to play in the dragon any field because that works for them we want to play on the field where we bought the and the defense to that would have been i relied on advice of counsel how how can you how can you win along how can you when that's not i would disagree with that legal conclusion that rely upon the advice of counsel one hundred percent insulate you from any responsibility and there is a severe court case the does not one let me go back to the very number three so from our perspective travelers over paid more of the harm than they were then they should have since they were only one third of the pro injury experience i mean it's death death three million dollars three million i mean it is a certain thing that happen that is what has to be foreseen right the exact amount again doesn't have to be forced on you only have to foresee that you're negligent advice i honor i would i would submit and and if the jury was instructed on facts well cause they thought they would learn that that there could be more than one factual pause as the court said in the harsh case where you had a manufacturer on a crash where they cased and of negligent driver they were both substantial factors at the times the potential factors with the what the standard they were both substantial factors in causing the result that's all we're saying here more than one