before twenty two zero seven zero and in considering case law then in actions involving the fault of more than one entity the jury must allocate fault the each entity that causes a plaintiff's injuries with some statutory exceptions although this allocation issue was squarely and repeatedly presented to the district court in this case the court took a took it upon itself at the conclusion of the evidence to effectively rule as a matter of law that the allocation issue was off the table refusing than to instruct the jury on allocation despite the parties prior agreement that the allocation issue was live and should be presented to the jury in this case not when you're face to give it when you refer to prior agreement you mean the jointly proposed instruction correct right to tantamount to an agreement or outed both parties agree that allocation was a live issue that happened after the settlement with cosmo right i believe that's correct that the district court rule on that it  issue an order i'm i'm interested in whether this request for an impression instruction was actually preserved i didn't see that as record actually ruling on that just seems to get lost in the shuffle it's sort of did but there was a there was a motion in limi was presented in connection specifically with respect to the cosmos settlement and there was some some question raised at that point as to how you would treat allocation of the circumstances and it's quite remarkable if you look at actually at the  at page number i'll get that page number of the court there was actually a specific assertion by by the plaintiffs in this case that regardless of how the settlement was handled that trances team would be able to argue the issue of allocation to the jury in these in this case and and it would seem to appropriate if the evidence supported it had there been an objection it seems to me as i looked through this briefing your argument that you're entitled to the instruction because well for a couple of reasons one is that the law would have allowed it and others that the evidence would have supported it although it seemed pretty thin because i was an awful strong indication to me that your theory had your clients there had shifted but if i because it was an issue that was presented throughout the case so starting with the first proposition there was evidence presented at the in trial regarding the allocation issue first the question about permission to vent secondarily the question about the scrubber being defective been left out when it wasn't as crisp as you'd like there's no question your honor the obvious thing would be in the record you have the we object to the giving of instruction x we have we object to the failure to give instruction number why you don't know that it was when the district court didn't have that issue before it i mean it did not reject the abortion and instruction that was jointly requested it just ended up not being in the relating to for kosmos fault we know that the court absent after the fact in the in response to the post from motions but made a statement that somehow i thought the evidence was insufficient even though it had previously determined that that very same evidence was sufficient deny summary judgment to cause mo so the issue was in fact joining throughout the case and let us not forget that we've argued that there was an a stoppel issue present here this issue was was jointly presented by the parties it was pleaded it was argued it was presented to the court it was something that was found in the pretrial order at the i think it's very important that all of that would have been true prior to cosmos settling i think these jointly proposed instructions happened after cost not settle which i think would seriously strengthen your astop argument but the part of the record forgive me for interrupting but the part of the record i'm really grappling with is the waiver issue and i see the on record but objection but which i think you're right at this off but you know they are really tough but just before that i think the record shows that just before that there was an in chambers conference what i'm trying to get at here is that do we know what was said in chambers to discuss the jury instruction we don't was off record it was off record and then the party came into the courtroom and that's where we get this instruct objection that's that's on the transcript is that right right we do know we do know as well the counsel in opening argument and evidence no intention to waive the issue if you could look at excerpt of record sixty two in his opening statement and again these issues were not crean lee presented the council basically said look the issue in this case is where is kosmos and why aren't they here now but the difficulty is that i have as i think well i've just told you post trial he said the jury found one of the other but there wasn't a scenario where that this plaintiff could have been exposed to both and they apparently believed one set of witnesses and not the other well the critical thing in response to the questioners this that with respect to the allocation issue in washington evidence a deuced instruction well i think in this case the issue was so intensely presented to the trial court here you have a you have it pled you have it argued in the pretrial orders you have a jury instruction that's offered you have a verdict form that offers the issue up this issue was live and present it was raised in opening argument you have it the subject of a discussion in the supplemental motion and lemony that addressed specifically the cosmos issue i think it was clearly addressed to the district court and under the circumstances the district court sort of abruptly decided on its own we're not going to consider the issue it is tantamount to what the court this court found gurren to be reversible error which was a district court that simply said as a matter of law brief and leave us not forget that we've never known of the existence of the terms of the settlement between cosmo and pro they've never revealed that in the statute requires five days notice revealing of the terms of the settlement so available to ensure that cosmos pays what its fair share of the settlement assuming that trans has that sort of argument or a procedural a is there no way to do that procedurally there's no way the fact of the matter is the only protection that non selling defendant has under the old regime of joint several liability is this reasonable mishearing process because statutorily any any contribution claim that  argument in reply your honor certainly and it certainly is the subject of our statement of additional authority here the fact of the matter is as i say that this is a rather disingenuous argument to be had when the cosmos settlement came up the issue was was certainly raised about whether or not there was an opportunity for this issue to come up and at the time in the in response to the motion and lemony on this settlement subject basically crowe's position was not to raise this question and twenty two zero seven zero some three never gave notice of the settlement never gave its terms to us and it basically specifically argued at that time that allocation was going to be available to t question as to whether it's a plane in error in light of the the exception for hazardous substances elites as part of argument as i understand it absolutely there's certainly a player issue with respect to the the exception is there a case that would help us understand that there is not a single case under washington the law your honor in which the hazardous substance issues been applied outside the context of as a c s so the issue was never there was never allowed to be join basically the district court level and one of the issues about allowing a party to raise a related argument of this sort is there has to be an opportunity for an issue to be surfaced and developed at the trial court level you didn't have that here no opportunity to do so because it was never any signal that the issue  trial counsel in this case they will not be presenting argument at the very beginning of trial in this case j j w's counsel told the jury the first statements out of their mouth was that mr crow was injured on september twenty seventh at approximately three pm he and a number of his coworkers were exposed to an unknown position is that the elocution defense was abandoned and that process began in june prior to trial both with me while it with the pretrial order and the disclosure of the new expert's report that position was carried through if that's the case and i'm trying to make sense of it forgive me for interrupting but i just want to give you an opportunity to understand this chronology why then were there jointly propose an agreed upon destructions allocation instruction after allocation theory to seek to have negligent apportion to cosmos on the basis of the identified person who said go ahead invent the truck or be because this didn't function properly as i have it well that's that's  sorry i didn't the it is why would you have agreed to the allocation instruction department struction after cosmos settled and i think the answer that you just gave me that i understood you say is because we didn't yet know about so for s theory they would have been entitled to it so you know in the briefing suggested that they has no substance exception applies here do you now say it does not apply well this is the problem the issue actually be and engaged by the time of trial the issue of whether allocation applied or didn't apply could have been addressed at that point the reason it wasn't addressed wasn't some stoppel it was the fact that allocation was no longer an issue by the time we got to trial well this was a single party out a claim that only a single party was at fault well they didn't or just some evidence as we've just discussed about about kos mos so could you look at the and tell me why this the objection that we've got on record is an adequate what's your strongest argument sure that offense takes exception to the verdict form it's our position that rather than quote  because it does again it fits with their theory of the case that does not involve allocation with j g w was attempting to establish and it's replete through the record and i direct  so when you have this inspect section when there's this is it these two really forgive me for those two police are two hours apart correct they're not related it isn't an issue of combined injury so what is happening here is j j was exposed to sulfur dioxide right they could help ok but they didn't need a separate jury instruction for that determination that determination would be found by determining that j j w was not negligen which affirmative defense i mean or is it an affirmative defense that somebody else is responsible just so they they said that one theory was that cost was one hundred percent responsible because the injury was caused by sulfur dioxide responsible for the release due to its negligence but i don't see that that aspect of their defense in the two objections to jury instructions that they asked let me respond to both the defense that caused is one hundred percent responsible is not an affirmative defense that is a defense that we are not liable in is not pled as an affirmative defense right and did that make it into i think it was in that proposed instruction number two did that make it into the instructions to the jury that cosmo was responsible i i'm going to find a jury instruction number two i appreciate your point but if it's jury instruction number two a search cosmo's negligence contributed ok this was not given i think i just answered my question so it's not an affirmative defense the allocation is an affirmative defense and the evidence of that is the defendant statement in the pretrial order excerpts of record one hundred five j j w says defendant side j j w is not required to prove fault of any nonparty entities and that's true if the fault is one hundred percent if all of the injury was caused by someone else if there was shared fault if there was allocation then that's an exact fault state because as their affirmative defense it is their burden of proof to prove the fault of j g w but here in the pretrial order they're telling the court they have no duty so so to the extent their theory is the injury was caused by self or dioxide it's under it we did release silver dioxide therefore we can't be held liable correct ok so they don't have to prove that somebody else release of a day i correct ok but but the district court acknowledged that there question i have about their objections to the jury instruction is that theory anywhere in the two objections that mr horn broke and our position is no it is not no where in that exception is  the is there a discussion of allocation is there and keep in mind the the the right of allocation rises only when the kid when there is indivisible harm caused by two or more entities there is no mention of any kind of shared fault shared responsibility in the allocation instruction i would also disagree with you that the trial court ever recognized during trial after  kargil report came out ever recognized that j j w was presenting a theory that was consistent with allocation on this record what is equally what is just as plausible to have happened was when the council went into the chambers to discuss jury instructions the judge is going through the instruction gets to the allocation instruction and says well this one doesn't apply anymore until we don't know yet and we don't know what have we don't put your answer my question about pro story instruction number two which i understand and please correct me if i'm wrong i understand you agreed to this and you agreed to it after cosmos settled and this says defendant denies those claims and also assert after listing plaint burden improve my question a minute ago was whether or not there is any instruction about this affirmative defense that made it to the jury and you said there's no from a defense or just a lack of had to prove a lack of an element proximate cause it seems to me that they were asserting both and you agreed to this proposed little challenging but but that's what this says and this was jointly proposed and it was jointly proposed after crossing the settled so my question is was there any instruction given to the jury about an affirmative defen now back to the point or point that by the time of trial cosmo had had abandoned the affirmative defense of allocation of fault they had settled on a theory of sole liability on the part of cosmo which is not a joint in several liability situation that would even trigger the allocation opportunity ourselves so ha had crow asked for the apportion and instruction are you saying that the district court would have to night it because it wasn't supported by any the record it had cosmo or had j g w requested an allocation instruction yes that's exactly what would have told me that they would have been entitle to the instruction i'm sorry i misspoke we would have position that if they had it's requested the apportionment instruction they would have been titled based on the evidence they did go to trial they had nothing to do with the sulfur dioxide defense they still had evidence of this proper and the unnamed individual said go at an event the truck my answer is no they would not have been entitle to that instruction after the evidence was presented because the evidence on its face was insufficient to go to the jury the evidence of the scrubber was never tied to the actual condition we don't even know when the scrubber was one where whether it broke whether when it was replays we don't have any of that information in there is no testimony t any condition in the scrubber to the conclusion enough if the jury believed him i wouldn't have been enough that somebody from cosmos told this individual he could vent the chop i can tell you why because of the testimony that was presented the entire testimony that was presented says me i'm looking for one piece of paper here  goods so the difference now at the time of trial and this is different from summary judgment of cases developed at the time of trial mr goodwin testified about this conversation with  e cosmo employee and what he said is and it's your testimony that the environment environmentalist gave you permission to just go ahead and vent to the atmosphere's out right answer yes question is that something that was surprising to you and the answer this is the important answer not really because of how far we were back and we're surrounded by the pawns like i said just a minute ago the fumes are attracted so i am assuming that he was thinking the same thing that fumes would just go and be going right into the pond then mr goodwin got into his truck and drove away from the pawns he's saying that he assumes that the him permission because of where he was then he got into the truck and drove away from where he was there was no causal connection could be no causal connection between what the cosmo employee told allegedly told mr godwin and what mr godwin actually did and that's the difference between summary judgment and the trial is now there's new evidence and the evidence is more specific in the evidence clearly shows that mr godwin had no permission from anyone to drive away and it was driving away that made the difference is that answer addressed the court's question wasn't a part of j j w's theory a trial to it wasn't properly accepted to three they weren't entitled to it under the evidence that was presented in the case and for rebuttal thank you in a vote with all due respect to counsel in response to judge kristen's questions this is contrary to the position that crows taken throughout the course of this litigation if you look at docket eighty four which is their opposition to the summary judgment motion brought by cosmos they specifically argued that if this evidence came in regarding the venting and the question about the scrubber it was sufficient to establish a question of fact upon which issue of fault associated with the ammonia gas issue that simply contrary to the position they've taken throughout the course of the case contrary to the district court's own position in denying summary judgment as well and so what we have here is basically an argument that's calculated to avoid the very strong public policy of washington the fault needs to be allocated evidence was a deuce that allowed that to occur and we were entitled to defend a case in the alternative as has been observed by the  panel we could argue that the sulfur dioxide was the issue we could also defend their position which was their position throughout that it was the salt the ammonia gas that was at issue now council has stood up and said well they waive this issue that is baloney it's baloney for this reason the arg the issue was argued throughout the course of the case by transistor i'm an instruction was offered it was the subject of pretrial orders it was argued to the jury evidence was a deuced on the issue but i think asked a really good question as he was concluding his opening you might wonder why we are here that is a good question it is not the most important question the most important question in our view is is why is cause more not here and where are they we intended and did argue below the issue of allocation of fault the cars meant that that statement you just read would be the same whether you thought it was one hundred percent or only partially liable it's true your honor but i think the point is it wasn't an issue that was abandoned because the evidence was a deuce to trial regarding the venting and the issue of the scrubber if that if the issue of allocation of fault the cosmos utterly irrelevant that evidence was significant to the issue and was significant enough under washington public policy to allow the allocation issue to get to the jury the district court foreclose the opportunity for the issue to be presented we asked the court to reverse and grant a new trial here thank you