the first case word versus and there is i don't he's not a canadian resident i've talked to there was one of my first questions i called council in buffalo to see if i could have been and they have workers comp i don't think it was passable he's an american resident this is an american company i thought is this was he should have done it i couldn't figure out a way to do it but he did i don't think it would have worked we're dealing with a fairly confusing set of briefs and then you know precedence here it seemed to me that there was a fairly straightforward answer here that i'd like to run by you which is the f b o way does not preempt tort claims in the situation because it happened outside the united states the accident happened outside of the united states the locomotive inspection act sets standards the the defendant applies to their equipment being run whether it's on both sides of the border and they in the as i understand it you're alleging with varying degrees of clarity that the defendants equipment violated a regulations and more general standards of safety and indiana law allows claims for negligence based on such breaches of federal standards of it and i think that i didn't the only thing that maybe the judge didn't get before is that we didn't cite the two cases from priestman and kyle and the new york case in the main case in the lower courts so maybe that's why the  understand problem may have gotten confused because of the border issues which are fairly unusual at least but but i but the cannot the delaware and hudson decision by the third circuit judge jordan's of conduct would reckon you'd be used to enforce the federal standards of correct the case was presented to the judge below it it did that when the day so then is this court i did by two other cases that were work directly on point in there the closest cases i could find and one is for the district of maine and one is from the southern district of new york where they precisely and vile american workers who were injured in canada the other case i don't know why it happened  maybe it's my mistake that i didn't find those cases earlier they were hiding in plain sight but it seems that's how it seems that's my story i understood that you waived all of your claims except for the failure to warn claim that's what they're claiming th not allowed and if so all we have a live in this case is a failure to warn claim which has nothing to do with a violation of the federal standards promulgated under the l a well that was in the judge's belief it doesn't matter what the judge but if equal you're not alleging and we as far as i understand from the confusing briefing here you don't have evidence of a violation of the federal standard problem created under the l a we saw it leave to amend the complaint to go obama with fifty nine defendants in the act and that was it and it was in the united states we did not hear the situation that doesn't make any difference here it's because it's a whole thing about l a preemption and the federal what the l i is not a separate cause or be action it doesn't really understand that it's an l a preemption case because the only cause of action that you have left is a strict product liability state claim for failure to war also argued that the court was wrong not to allow us to amend the complaint because that would have preserved it because we said we'll gladly go back we'll gladly do ally claims that's all in there and it was odd that it was a situation where any way we tried to go we were foreclosed and also so that i had it i believe that we should be able to have the right to go back in because it was the giants claims against the railroad  good and they were arrogant that we could amend the complaint further and run remey and it seems like this is a case where it was it was heads i win tails you lose every totally unfair when was the district judge presented the route that i was discussing with you at first i was simply saying well i a standards of are violated we enforce it under the common law since the  does not apply our response to the motion to dismiss the suit like he has that so you argue that the l a we said is the standard of care and that standard of care was preached you made that explicit argument in yester court well since i believe that i'm pretty confident yes well if you made that argument in the district court you sure haven't made it here so it's con please the court gregory longworth here on behalf of sue line i just want to address a couple of the questions that have been asked by the by the members of the court the first is the availability of canada law i don't know whether canada law for sure would have been available but certainly the rogers case that the plaintiff relies on seems to infer that at least in the f a l i preemption situation in a footnote they say why don't you go to canada and in fact the p case i think there was a judgment that was rendered in canada and so i think that was an option for the plaintiff certainly certainly was a viable route to consider pursuing  the court has asked about the third circuit situation and and in fact i think that there was some effort on behalf of mr ward to amend the complaint that was  denied as being the complaints don't have to articulate legal theories scuse me complaints you not have to articulate legal theories that that is true but it was clear that the standards that were being alleged were indiana standards and what was not being alleged but he was referring to industry standards well then seem to reflect the m l i n e the two the third circuit makes it pretty clear i think that that type of claim and i will note that my co defendants disagree with that third circuit opinion they don't think that that claim exists i do think that claim exists on behalf of the railroad and would exist on behalf of a an employee who is not covered by feel or preemption if he were suing would be the railroad right i believe that it would be yes now again to the motion to amend was denied and that  denial of the motion demand has not been appealed so that simply is not that's really not that's beside the point you don't have to include your legal theories in pleading now whether the argument is made in response to a motion to dismiss into an appeal is a different problem but let's not to get too excited about denial of leave to amend the other the other factor in that is that there was the concession that all the claims are gone other court the only defendants are the manufacturers of the locomotive parts the brakes brake pads and the court despite that spite the fact that there is no f b i a claim says that a preemption applies in that case under indiana law and he's asserting indiana duties and standards of care the reason that he did that presumably is because he sued in indiana and his indiana and he's from indiana there may well have ben crew members that day from michigan or illinois or any other number of states and if one of those employees had been injured instead presumably that they could have sued under their state standards and duties if the court allows mr ward to pursue his indiana duties and standards of care nothing stops any other employee from suing under any other states duties and standards of care which means that the the railroad is the employer is putting it on tenable position of needing to protect against every standard of care every duty not only the l i a which is supposed to be the one uniform duty but every state's violating a standard applicable under the right yes that is correct i assume your you guys handle those claims from the road him as those sorts of claims all the time that's correct and it would have been that situation but we have these strange standard and that the claim would proceed under the federal duty of care i think that there was some intimation at least to that effect and that's where the the district court said that it was too late to amend to add those claims and again that's what was not appealed to this to this court the denial of that motion to him and if kearns excuse me if mr ward is allowed to as the railroad employer be subject to one single uniform standard they know that when they construct a locomotive it has to meet these specific requirements and if it meets those specific requirements there's no further liability for violating any other states standards or duties we basically what mr ward's inviting the court to do is basically open up a free for all where any state's duties could be imposed any time the injury happens to happen in canada i mean it's not uncommon at all for trains to to move from the united states to canada it happens routinely that case recently from what i would say is that it's not uncommon for preemption to result in no remedy and that happens all the time this court's given given though the  fairly sweeping and general standards under the ally and the safety appliance act and there's something that starts with our that i don't remember one would think though that the the the device of suing under state law for breach of a federal standard of care would at least in many cases allow remedy well according to delaware understand mr longworth famous understand your position for actually in essence the mistake that the plaintiff made was he and waiving all but the failure to warn claims that if he had preserved claims based on simply the substantive breach of the l i standards there'd be a perfectly viable claim against the railroad well i don't disagree on one point i don't think he ever asserted in l i a claim against the railroad or calling for a share of the broke and you can sort out the contentions later well no question about it was adequacy of the complaint but it was time to sort out those claims in connection with a motion to dismiss or a motion for summary judgment and that's before the district part the district court specifically commented on that and also found that even if he had asserted that type of claim it's similar to a failure to one claim that would be preempted under current with that being to comply with standards lets say for brakes or for electrical safety for electrical locomotives whatever that might be and somewhere in the united states that defective equipment causes some kind of serious accident injures bystanders injures neighboring landowners and injures passengers and crew apart from the uniformity so you answer would be there is no remedy that and their answer and so that these statutes the don't actually include any preemptive language at all give blanket immunity to the railroad industry and manufacturers from tortious harms caused by their products is that right that's the position yes your honor that's astonishing and i bet it's what the record in the delaware and hudson  to take a position on whether it's right or wrong but congress did take a position and amended that the first half hour essay to change the law in response to the now decision so i would say that to the extent the position that acted in this country to protect real growth workers and so that we have a remedy for them is just grossly unfair to the mill case was it unfair or the court itself noted that it was unfair but they they felt it was a very harsh decision they said it right before the conclusion but they said they were constrained by the language of the statute there's no such now no one would you know they say they said i believe i just saw that but this is the statute this is a liberal