d to settle cases as we've pointed out in our briefs the the of helots are here today for for a variety of reasons first of all it has been determined over and over and over again in these cases that dupont the defendant and appellee in this case committed fraud that the fraud was material it was material misrepresentations of fact that were very very important to anyone who was litigate one of these product liability cases judge elliott the the district court judge in the middle district of georgia who presided over the bush ranch case found that the  concealment of what i have termed in our brief the all the two documents which are the bush ranch all to alter the documents the lambert real analysis documents those those documents were referred to as the all two documents both specifically by judge borrow who was the district circuit court judge in hawaii who presided over the column on a case also found that the hearings in georgia it puts malone the plaintiff's lawyer in that case and my clients now who were being represented by him in the identical position as judge the bar was the circuit court judge in hawaii when he found that the assertion of the work product privilege to keep these documents the all the two documents and seeing the light of day that he was defrauded that it was extremely relevant it was extremely material in fact it was so material that he he ruled in his sixty b order following the verdict in that case that having known that they were falsely asserting the work product privilege that he would have granted a default in that case also because of the content of the altitude documents and this is important because i know that dupont is making a a pitch here and it ended up in the order that they wrote for the district court below that he that he essentially rubber stamped the sixty four page order that just mentioned their evidence didn't even mention our evidence didn't even specifically refer to many things that we submitted to the court in opposition judgment motions and if you're if you're ruling on a motion for summary judgment and you're going to give all the inferences that are reasonable to be given to the to the nonmoving party you have to look at the plane of seven it's i specifically as respect to the alter to evidence the bush ranch documentation the laboratory analysis we submitted through a crime fraud proceeding that we were able to obtain a letter from john lacy who was the defense lawyer letters there was a draft letter in there and then a letter that was actually sent to jerry ashby who was the inside dupont council and woman ethan said to him that when this all to evidence came in it was evidence of a cover up and fraud that would you get not just evidence of contamination you get evidence of cover up well see that your theory isn't supposed to have been a fraud well you've done the cover up to oh that's not my theory is this an open or are opened up during the course of trial no because the time you find out about it all of that happened in june of one thousand nine hundred three i don't know you're allowed to pick the point where you want the fraud to end if we said there was no fraud in the first place then you wouldn't have had a coverup and you wouldn't have cover up value you'd have the actual value of your case but that actually john laces later doesn't refer to the actual value of the case it refers to the cover up punitive damage problem the actual value of one of these products liability cases with that evidence is what happened in the said the settlement is what would make it and on a settlement when all the facts were known all the facts were known and the facts included and that there was pervasive contamination that had been to have been covered up and b that there was a conspiracy between two possible hours and two parts chemist to cover it up those are facts that with that would be very very relevant if you're saying you're saying that the case becomes stronger because of the altitude documents and therefore you're you can you can demand a higher settlement because the risk of losing is diminished as absolutely and that's what kevin malone started his deposition he's a lawyer let me ask you this how do you prove the settlement value of these cases judge real held that your damaged evidence was speculative how do you prove what these cases could have settled for you prove it through expert testimony and we had two experts change winter and andrew gurley and i think there's an analysis in the jeffrey foods case that we cited to the court replied these guys looked at what other other similar cases settled for yes they looked at how do you get how do you get that in under four a wait well because under four await your you're not submitting the evidence maturity practiced for thirty five years out there do you agree you couldn't have submitted it directly i'm sorry you agreed that you couldn't have submitted what other cases settled for directly you know i don't agree with that because i think that  grocery store and they settle with me for for ten thousand dollars can somebody else the next guy who slips and falls off or evidence in that case that they settled with me for ten thousand dollars if that's relevant to something other than just the reason for instance it has a reason for on a reasonable reliance or on that's your reality it can still be still be admitted directly but it can certainly be used by an expert if they object to any of on the certified question to point brief those very points and we pointed out and quoted from their brief when they brief that to the hawaii supreme court and remember that the question of reasonable reliance here is a question of state law and the one that's the reason judge who was that the district court that was first in charge sent it to the white supreme court he said the question of reasonable reliance will be dispositive of the issues so tell us what hawaii law is on that the why supreme court got got the motion for s reasonable reliance is question of fact almost all the time and under these circumstances we see no reason to depart from that that we hold that reasonable reliance is a question of fact here and it should be submitted to the jury they got fact the judge  declined to refile their motion they did there was some new evidence that was submitted the second time around the lacy letter for instance malone's testimony for instance and what what they what he ended up doing is ignoring the why supreme court he says i'm not i'm a federal judge i don't have to pay attention to them or worse that affect completely violating every versus tompkins in the united states constitution i mean it was it is mind baffling to me the whole notion was  strenuous objections under for all fours as other bad acts and it got into evidence our expert jody johnson was able to testify that the i'm a little analytical chemistry a testimony the bush ranch to material was  initially and the third circuit from points and i practically not clear right now it was but it would go to the jury anyway judge barr let it go to the jury in column adda because and again we have to look at the other fraud that was going on here not just the altar fried the coast rica fried where they were dupont put them late on plants in costa rica the plants died the scientist in charge told this man vargas down there who ran a test when he found out that the fraudulent way they conducted discovering the good representing at dupont at that time that alston bird also in a bird representing them in the bush ranch case in the freeman rodriguez cases which is the amy donner case i believe they were represented by sheer carty and i think that's right but it was and alston and bird may have had a tangential connection but i think at that point they sort of move them out of the way i asked desk you as a sort of great way to get into the rico claim yes judge real ruled that these lawyers the lab and dupont were not separate were not sufficiently separate the fight promoter king the king could conspire with his own stoli own company to form an enterprise so when judge real says that dupont can't conspire with all the last personnel an good morning and may please the court my name is james bogan i represent dupont in these consolidated appeals and i'd like to start with the settlement that was orchestrated as between two pont and kevin malone because it was unlike any other settlement in the underlying ben like cases malone represented two hundred twenty separate growers from florida hole y coast to rica panama and jamaica he represented half of the entire bend light docket if you will half of all of the cases pending against dupont across the country he was an experienced trial attorney he had lawyers on his litigation team that included one who owned a tr tree farm had a degree in horticulture another lawyer had experience in analytical chemistry issues and he invested ninety million dollars nine million dollars in discovering and prosecuting these cases dupont paid two hundred fourteen million dollars to settle malone's cases half that then late docket and malone after the settlements emphasized to his clients again and again how his settlement was different from any other how he was the one who knew the facts he knew the law and was willing to make the investment and put in the time to do the cases right now these clients as was pointed out they have affirmed the settlements of their underlying cases they acknowledge that the products claims are released that they are dismissed with prejudice and they're proceeding here under a very circumscribed settlement theory and that brings me to damages which i believe is the most significant issue here because it's dispositive of every single claim advanced by the plaintiffs in this case and as was pointed out earlier by the panel the legal measure of damages in the cell one fraud case is the difference between the actual settlement value and the probable amount of the settlement in the absence of fraud and that measure of damages is reflected in the number of cases cited in mosques or a one in the block in case they d case and the automobile underwriters versus rich case and this was the damages theory that these plaintiffs originally pursued as a matter of fact in their final pretrial statement filed in this case they advocated that measure of damages they were going to prove what's the difference what's the actual settlement value and what's what with the settlement had been had there been no fraud this theory changed however when we finally got the files of kevin malone that they had fought in tried very hard against our seeing for years and asserted privilege over malone's files and we finally obtained production of those those documents and we found out that malone had advised his clients that he settled the cases based on the assumption that he could win on liability and that he got in his in his particular opinion full value in those settlements this is opinion that's what he said offered other opinions that the cases were worth more he's never offered an opinion about him they offered other people who offered then torah and burly with other cases and hurried what malone says were worth more than what lawrence's well that's interesting i'd like to address that malone throughout his entire deposition malone never gave a value he never testified as to a value as to how much more he could have received and then we have these experts well it's probably not an accident he's not eager to put a price tag on how we settle she against what he could have done if the latest cards differently well experts have done first of all starting with malone's deposition testimony when he testified at this deposition he says you have to consider the individual circumstances of each plaintiff claims you have to see whether or not each one is a good witness you have to evaluate whether they had problems on their on their farms like bacterial blight you have to consider the issue of comparative negligence i mean that's malone's testimony as to the factors that you have to look at and evaluate  in this case it's sort of the same time they were all settled at the same time they done on a on a farm by farm basis they were malone's testimony is that while they were settled at the same time they were the settlements were individually arrived at and individually approved by each particular client and that was his testimony in this deposition but these particulars let's return back to your central thesis which is this is simply too speculative  juries all the time and juries don't seem to have a problem with the somewhat inherently speculative nature of well i think it's wrapped up in the nature of damages i mean if you look at the cited by the ninth circuit automobile underwriters versus rich it said what you have to do is you have to have a very clear evaluation of all of the facts and circumstances that apply to each of the individual claims and then once you find out what the with the settlement value would have been then you deduct the settlement amount which speculative here is that these experts absolutely did not do that they did not talk to the individual plaintiffs they did not talk to malone they didn't even review malone's deposition testimony they did no one now insists of the specifics of these plaintiffs cases is that mr thayer making a generic observation about of sanctions orders you know the bush ranch sanctions the order the k t sanctions water and then they come at the very end of the report they say i think they should have gotten three times as much as they got and  that i think you could do it you would have to begin and i think by having these attorney experts look closely at the specific strengths and weaknesses of these individual cases and take take the the issue that this evidence peaks to isn't going to vary depending upon the particulars of somebody is individual farm the issue has to do not with what happened on that particular farm but on how the testing elsewhere suggested upon that they should have known a long time before there was a problem with the product well this in this particular factual circumstance your honor you have malone saying unequivocally he he some of these cases based on the assumption he would win liability so the fact that you could have additional liability up and say actually settle the case is based on the assumption that  statement he never said and it's that this issue that i discounted the value of these cases because i didn't think i had enough liability evidence or at the time he said precisely the opposite any never backed off of that and i think it's the evidence would enhance the damages even assuming liability in this reasonably clear what this evidence absolutely would not enhance the damages the evidence had nothing to do i mean you have you have the analytical test on another growers farm that might be helpful in making out a liability case but when these growers have to prove damages it has nothing to do with that evidence they would have to prove lost profits you know plants dying they're not selling as many plants the damage proof example take the we have one plaintiff in here who grew in therians and it's clear it's under speeded that the in theory i'm growers had a significant problem with bacterial blight i mean the plants were ravaged by disease now let's look at that individual circumstance why would a dish in a liability evidence mean anything in that case i mean these experts certainly don't even begin to try to analyze that in under six count the claim because of the not the absolute dollar value of the loss but the ability to settle the case goes up as they have a stronger case for why ability the problem your honor on summary judgment is there is no testimony from alone to that of fact and fact malone didn't even  maybe there's a possibility that they can't hand as experts response really if you're arguing the weight of their testimony rather than its admissibility i mean they have they have no basis to say that liability was discounted under these particular circumstances when that is directly contradicted by malone's testimony i mean malone is the man through whom these plaintiffs were allegedly defrauded and we have this deposition testimony and it's facts and the experts maybe if you try to explain what malone said in reaching an opinion but i don't see that how they could come to factual conclusions that directly contradict what malone sent i mean these are  these are not aspects of an opinion and i don't see any basis on an expert to opine on that you know again let's assume that the the so called cover up evidence comes into trial that certainly enhances the value of  power to sanction a party for discovering this conduct it is absolutely outside the province to the jury what happened in katie i grant you the point of the jury instruction but even if the evidence comes in that does tend to have an effect on the jury whether or not two levels and damage in fact because it's uncertain given the one statement about what he was thinking at the time a settlement that liability evidence would have made any difference and the other only thing all to put on proof according to the legal measure of damages i mean we might be talking about a different case if they would follow the process that was laid out and you know automobile underwriters versus rich where the they look at the strengths and weaknesses of each case and they look at the evidence when they come up the value of what the settlement would have been in the absence of fraud and then deduct the actual settlement amount from that but they utterly failed to do that i mean all of their expert opinions are intertwined with the sanctions theory the sanctions theory destroys the entire construct of the settlement fraud case because you discover that if you discover or uncover the scheme you discover the cover up at the time the settlement there's not going to be a supplement fraud i mean it's almost impossible just destroys the conscious construct and additionally and i think this is very important what they're trying to do here is to double dip on punitive damages they want a cover up punitive element incorporated into their compensatory damages sh ok and then they want in this fraud case that revealing with here now they want punitive damages on top of that for the same conduct and then they want the compensatory war trampled under rico i mean i think it's an entirely there's no our probability we're going to win liability what's our probability we're going to prove damages what the damages range and so forth and if you give a probability analysis of this case it seems to me that there is an argument that the probability of a higher value can be reasonably ascertained you can say the probability with a stronger liability case enhanced each case x percent i mean you have to have to concede the theory i know you say these experts don't say that but it  liability analysis is strengthened five percent i comes out with some number right right so that's so if if there is an expert testified to that fact certainly that is reasonably ascertain annabelle as a matter of proof that's it at least sufficient  are the jury juries decide those cases and they go forward what's different about it because here we're dealing with a very specific measures damages what would the settlement have been had there been no fraud and in the bad faith case i don't know what the measure of damages is just off the top of my head but here you there's a specific direction on how to do it and i really don't think that this measure of damages necessarily applies in that that faith case but here you have to prove independently what is the value of the settlement had there been no fraud i mean i think that the trial judge wouldn't even been in handling a settlement fraud case would even be permitted to not let the jury hear any evidence of what the original supplement was that the according to the automobile underwriters versus rich case the plaintiff could go on and put on reconstruct the settlement this is how the settlement would have happened had we had all of the evidence and then the jury could come up with a number and then the judge can then take the settlement amount which is undisputed and just subtract it there's no need for the jury really even hear that evidence and so the question is it focuses back on what is the value at that day in april of  just give them the evidence but you're locked in that period of time how do you prove that up and all of the other evidence is irrelevant the bush transactions order can come out to nine hundred ninety five irrelevant the k t sentients order irrelevant because orders did not exist on the day of the settlement it would be completely irrelevant to that shelling and all of these experts and even malone testified about the value of this evidence through the prism of those sanctions rulings malone said well looks like current in austin bird and all the labs are sufficiently distinct entities where we go purposes well first of all we've had the same issue examined by a couple of courts judge gold evaluated this distinctiveness issue and in the latest florida evergreen case with respect to the same allegations against dupont the answer seems to be these are separate separate entities alston and bird is a law firm someplace dupont is a fortune five hundred company all the labs of the laboratory out of these distinctive they're not separate because when you're dealing with a libel corporate person in this case due process which only can act through its employees and you do not have a sufficiently distinct enterprise from the person i mean those dupont hired tony soprano to break into the office of the plaintiffs and burn their vials with would they be sufficiently distinct under under those circumstances where you're hiring a mob person i mean because i don't understand if they hire you you fill in the blank they hire a law firm they hire a laboratory they hire a thug i mean whoever it is they hire some independent entity to go do something you know do some dirty deed i don't understand why they're not sufficiently distinct well rico enterprises do not cover simple conspiracies enterprises do not cover the simple commission of the the rico statute is not an conspiracy statute that is designed in all simple conspiracies i mean all i can say is that when a corporation like dupont hires an outside law firm to defend itself in products liability litigation i don't see how you can get a distinction rico enterprise out of that i mean the allegations that they have in this case is that due process in house attorneys will prefer participating in the fraud that dupont in house scientific experts were giving false testimony and the allegations that they make relative to the outside lawyers and the outside experts are not different in any way they were doing the outside lawyers and the outside experts were doing precisely the same thing that the in house attorneys were doing and the here you are just just briefly on the on the question of what the law is with respect to here in the ninth circuit has been articulated as it relates to the speculative nature damages in the case of this type in the first decision and i have it here in front of me and i'm quoting they remember that these releases were all governed by delaware law and so at this point when one came here the delaware supreme court had not yet ruled on what remedy was available however there was a federal district court there that had ruled on this exact question called and the case  for fraud are conceptually different from damages for the underlying tort claims and are not too speculative to calculate so that's the holding of this court as it relates to this case or these cases foreshadowing what the delaware supreme court would do doesn't speak to the evidence that you've actually submitted i mean you're the plaintiff to survive summary judgment you have to offer up sufficient evidence to sustain a verdict yes and so none of this evidence the question of whether there sufficient to sustain a verdict of damages taking for the moment you said my proposition that i don't think you get the cover up claim as part of your case do you have evidence sufficient to prove up what the settlement value absent fraud of these cases were well yes i mean where is that evidence the opinions of james winter and when you've really the testimony lawyer that settled the davis tree farm teams case in florida who set that they paid the davis tree farm play that's two to three times on average what they paid malone and malone was the highest that had been paid previously and the reason for that was because in the davis tree farm case all of this evidence was known to the plaintiff's lawyers and that's tells you what it means to have this evidence to say that it's not relevant to the damage equation when you're talking about the settlement misses the point because obviously a plaintiff's lawyer if he's got evidence not only that the defendant found contamination but then lied about it and covered it up of course it's going to affect the value of the settlement and he will have to submit that covered up says if you get all of the evidence that you have on the day of the settlement that makes it an honest settlement that's what you get that's what happened in david street form it goes on to say the true measure of damages is the difference in settlement value before and after discovery of the fraud the fraud is absolutely part of the settlement copulation and anybody who is handle any case like this where you get this kind of evidence to say that that you got from heaven it's and that doesn't impact the settlement or you say absent fraud you know you say what is what will make the settlement honest what makes it honest it's more the point it's don't know everything they do find new that's what makes it honest that you quote was obviously not know it until the moment before trial so that they can prosecute based on a cover up at the time at the time they make the settlement decision this is a fraudulent inducement into a settlement agreement the question is what would they have done in that settlement agreement had they know all the relevant facts and that includes the fraud you can't the fraud is imbedded in the evidence that was that was concealed i'm not clear are those punitive damages figure into th that figure into the settlement value of the case i think the threat of punitive damages does figure into it the threat of having a default judgment rendered against the due part because of their of their of their fraudulent conduct int course if i'm going to go to dupont lawyers and say hey fellows we're going to get you defaulted here that's going to cost money you want to settle this case you've got to pay more money because if i default ship then might you know katie bar the door on the verdict and i'll have pun damages in there because you committed fraud of course that affects the settlement value now the question that i have thought about that i think maybe speaks to what you're talking about this then what happens in the instructions in th carries about whether you get punitive damages on top of the threat of funa damages and that's that's a question that hasn't been answered by any trial court and that's something that the trial court will have to grapple with but it's not even it's not before you right now what's before you right now is whether there was adequate evidence and you look at that leads testimony he settled this today this tree farm case with all this evidence and he said we had to pay two to three times as much as in the long got paid it turns out interesting lee that deposition testimony was wasn't wasn't taken i think until after james had been through a rendering his expert report i guess what he said malone got twenty five cents in the dollar he should have got sixty five to seventy five percent cents on the dollar two to three times it's interesting what happens when people who are experienced look at this evidence and say you know this would have been this wouldn't hance the value of these cases and this is absolutely no question