so judge cooper was faced with deciding this without the benefit of a clear sta interesting developments since we now have the benefit of the grisha opinion from the california supreme court and the grisha opinion i think makes things a lot clearer first the first thing that question  inquiry notice or me applies to discovery when you get to fraudulent concealment it's a very different reliance on the misrepresentations is reasonable we cannot generalize about the precise point in time when reliance on the tobacco companies misrepresentations became unreasonable whether alliance is  plaintiff's claim to reasonable reliance on misinformation a fact finder should examine the extent of commonality in comparison to the alleged convincing us of the misrepresentation we therefore reject solemnly to the extent that scientific opinion which says even this stuff is bad you know what there was was a scientific debate at the time and there was a good opinion by some scientists that even th pardon me there is some scientific thing in which this is going to cause problems we are looking for where there was was a great deal of uncertainty in the science at that point time and even the e p a regulations of the first time hamilton lost the case with union carbide you're out of there is no evidence in the record that hamilton materials has ever lost a case that evidence has not been presented and the three decades of litigation and settlements and to the question you raised judge gould the theory of this case is starting in one thousand and seventy eight when hamilton was first sued and there are complaints that are in the record starting from one nine hundred seventy eight it is alleged in this case that they are seeking recovery for all settlement amounts that they have paid and we know that they first got sued in one nine hundred seventy eight so this case a case about trying to recover for past settlement amounts and also try to recover for future settlement amounts now with this case is really about is an attempt to now shift going against carbide and the court has to know some very serious issues that have been raised by this litigation strategy because i really think it gives rise to a skepticism that this court should have why we're here and it was the same skepticism that i believe judge cooper had the promise of this lawsuit is the deposition of john myers in two thousand and three where a hamilton attorney was present suddenly the light bulb went off  now judge cooper actually took a look at that deposition of john myers and found nothing supporting hamilton's claim that has not been described to this court what was also presented to judge cooper was after the  when in fact union carbide knew that it wasn't that's what the claim is of value but what was presented to judge cooper was expert reports provided by in milton to other states courts in this state where they told other judges the exact opposite and that was twenty two months after the year reka moment so february two thousand and three at the deposition of john myers hamilton finds out that there is a fr i was just given that transcript that the court to take judicial notice of a public statement i have a copy here with me but what they're doing is telling two courts the exact opposite story this court was not told it's a fraud other courts are told it's backed by good science that can't be squared in any court and it shouldn't be square here but it's also completely besides the point if i listen to what was explained to the core essentially what counsel for and the medical positions that are taken but the issue before this court is statute of limitations when should this plane even have been brought in the first place and when you get to that question we can ma'am the demise of those cases your honor have very little to do with this and let me explain why those cases are cases brought by individual smokers against the tobacco industry and those cases are dealing with whether or not the tobacco industry can assert as a defense that those cases are poured out of court at the pleading stage that is not with this case is about the common knowledge defense is not with this case is about this case is about a sophisticated plaintiff who is charged by not by law not an individual smoker but a corporate plaintiff who under the law is charged with knowledge of all of the scientific information that is out there that they know or should or could know with reasonable diligence those cases do not in any and an expert means that you've got to know what the sciences and you've got to go figure it out so those cases reaffirm what the basic standard is for the discovery rule they don't change that standard but the factual context is very very different and they don't certainly suggest the district court can't hear evidence and grant summary judgment on when the statute of limitations begins to run we have to appreciate here is that this isn't just about litigation that this at this is a field which has been regulated going back to the one nine hundred thirty s and when you overlay the fact that hamilton the product that hamilton manufactured with banned by the united states government because it was unreasonably dangerous now if it were true and we assume for purposes of this that let's say union carbide said to hamilton hundred seventy six this is your product isn't reasonably dangerous a year later when the federal government bans the product is unreasonably dangerous they are automatically on notice to look side by side and the thrust of the lawsuit is that your product is unreasonably dangerous the duty of both that client and the lawyer representing them is to investigate is that true and by the way should i bring a claim against the person who sold it to me they're obviously very very experienced judges and lawyers who are here and we know that when defendants are sometimes on the same side they may make tactical choices not to go after another defendant but that when you make a tactical choice you've got to live by that tactical choice and that was a tactical call that was made but back to the key question is should hamilton of known when hamilton get sued they should have known when their product gets banned they should've known and when you put on top of that the six volumes of information that was before the district judge newspaper articles or medical articles expert reports that information is out there and hamilton knew or should have known all about key question here is what is really the standard and this according to the california supreme court is the question that we have to focus on and it wasn't changed by gresham soloman or any of those cases plaintiffs are required to conduct a reasonable investigation after becoming aware of an injury and are charged with knowledge of the information that would have been revealed by such carbide documents has been made available to lawyers and plaintiffs around the country and we're talking about thousands of lawsuits and hamilton had access to all of those materials and indeed what was presented to the district shown through district court the documents that are outlined in the complaint in this case appeared in books in one nine hundred eighty five so the question is what with the knowledge of the information may have been revealed by an investigation what would you have found you would have found what every other plaintiff's lawyer found and have been suing the union carbide with for the last thirty years the internal documents that's what they would have found and indeed they did find that when they did an investigation because there are details in the pleading and that's what they would have found what we're really talking about  knowledge that somebody has said it's on reasonably dangerous if thousands of plaintiffs so union carbide in hamilton over the last thirty years alleging that exposure to hamilton's product hurt scientific debate that's not the question so when counsel said well there's a government study that says this there's one that says that i would tell this court that when union carbide tries cases they do very very well on these issues the question the question is was there information there for them to find just like the other thousands of individual plaintiffs who don't have the level of sophistication who are not charged by law  with knowledge of all this if all those thousands of people could be suing union carbide for thirty years this corporate define that certainly could and when you pile on top of that the mountain of newspaper articles january thirty first that new information was presented to judge cooper let me make sure the court knows exactly procedurally what happened here this will involve two motions a motion to remain  and a motion to dismiss those motions were heard at the same time the reason was they involved the same issue whether or not the claims were time barred so the district judge said the exact same issue on the motion that this method and the mo remain and let's hear it all together prior to that motion because a motion to remain and is an evidentiary determination both sides leading up to that motion submitted a mountain of evidence that became the judge then turned to counsel for hamilton who made the argument before the district court and said would you like more time to respond to what mr bracks has brought before the court and the question from the judge was how much time do you need and the lawyer told judge cooper i would like one more week after that week another stack of internal documents deposition testimony of john myers the man who supposedly prompted the eureka moment deposition testimony going back to the mid eighty's was handed up to the judge your honor judge first you ruled in the in the rothery case that the question is did the parties have a full and fair opportunity to ventilate the issues and when you look at the record before the district court there was more than a full and fair opportunity and for hamilton to suggest that they needed to discover something else doesn't make any sense the case against carbide has been discovered for thirty years and that case has been written in books and it's all over for the world to see that concludes my time i would like to thank the court it was a great honor for me to be admitted here to appear before you today on behalf of union carbide i would respectfully request that the court affirmed judge cooper's decision that you thank you such a fraud claim but such a fraud claim is not expressed in the asset agreement and we had a declaration from our client mr cleaver who said it since the intent of the contract is paramount in any possible ambiguity under this contract that says there was no intent to assume hamilton materials claim and it was that declaration which was not objected to by the appellant and there was no countervailing argument and so your honor given your comments and your admonition i will submit the matter and i appreciate the time not i'm not rushing you past you've only got a small amount of time but your points pretty well made in matters to me and i appreciate the opportunity to present this argument thank you thank you