thank you peace accord we raised two issues before you today the first with regard to the remitted or of the first trial where the trial judge mid the one point two nine million dollars verdict were no we believe the issue of damages first we believe that the the court term look back to the first trial and reinstate that judgment and to the extent you don't want to restate that judgment that third trial on the issue of permitted to bring out evidence and cross examine witnesses on the issues of ultimate causes of the illness the issue was miss smith contended that mauled was the cause of her aggravation of what  was a nonexistent asthma issue and on cross examination of several witnesses in the choosing of the deposition testimony over its objections the judge permitted the defendant to her smoking from from ten years ago it was the mold that caused the illnesses and she's suffering from now so to the extent the court wanted the jury to determine or hear about the alternate causes it evidence was cut off from the jury being able to hear and our contention is because it's clear from the record that that second trial went on rebuttal and counsel was permitted in closing to still there was no evidence that was the mold it is preexisting conditions it is inappropriate for the jury to consider those preexisting conditions your p t a she smoked for ten years etc on determining whether the mole aggravated those issues or whether the is if there's alternate evidence of this evidence of the mauled being the cause it has to be able to come in and the jury must be able to to assess it and we believe because that was not done in the in the retrial on the issue of damages th of just him she would be on damages but damages where to the extend the fund that wants to introduce evidence of alternate system we're told we're talking here about specific causation to the extent he wants to explore as with other alternate that's fine but her current condition was cause exclusively by her presence in the apartment well we don't believe she had c o p d that's never contention that was brought up we believe that dispute that we di of course and we had medical testimony that it was not so pretty that she suffered from what was in her history was a minor player of asthma every once in a while that's a far cry from the condition she's in toda entitled to do that but we're also entitled to introduce testimony that it is mold that causes are not always tied to a dollar a dollar delaware case that was very similar in circumstances to miss smith where you know you  bring you need your plaintiff the way they are and just because somebody had a minor asthma condition before doesn't mean you're you're not on the hook for the aggravation that was caused by the moldy environment and it's our contention your honor your honors that because the second trial even the poet probably agrees of the second trial was on fear the court can look back to the first trial and see if there was an abuse of discretion in the remit or to begin with because there was a jury who has already determined all of these issues and determine the extent of her damages and has said hey there was three hundred ninety thousand dollars in economic damages nine hundred thousand dollars in and not in monaco nomic damages this court to the extent you think a third trial is not necessary you can get back into the first try to look there and see what whether or not  rulings of the judge that prevented the plaintiffs from giving the jury the full scope of of of the the opinions that mauled was the cause of the damages and with regard to we also raise an issue of to the preexisting asthma and her c o p d and he just be he went with it and the jury was able to hear all the you know this was preexisting no there's no evidence at all that it wasn't old but it wasn't the evidence wasn't there because the trial judge determined there was a new there were a number of problems presented in the first trial of this action and that is the reason why we filed the cross appeal we found across a pill because there was insufficient evidence upon which any jury could r general causation expert and failed to provide any information with respect to mr sibal no who was a liability expert the defense was not permitted to take the depositions of either of these two expert s there was something that strange that happened in this case and that is the court had initially joined these two cases the smith and the richards cases for all purposes and then for some reason that causation the plaintiff was allowed to bring dr wiener in as a general causation expert a person who had never examined the plaintiff had never seen plaintiff's medical records and had never provided reporting to rule twenty six had done nothing but he was allowed to testify as would the court permitted him to testify over objection as a general causation expert and he was permitted to testify that mold was capable of causing the type of complaints be medical testimony that ties the knot of that causation the must be a reasonable medical certainty that you are the where you come from the from the point of we have general causation to specific causation can prevent you from presenting your own what happened in this case is it's not a matter of rebuttal it's a matter of what proof exists in the first instance to go before the jury and in this case there was no proof of specific causation and in paoli in the other cases they say you've got to have the proof of the specific causation you can't just depend upon a plane to see it c dixon with the trial just said  tie if there weren't that medical that medical testimony then you wouldn't have me arguing this right now because then we would have had the general causation and the specific causation i would have been arguing that the medical testimony shouldn't have been permitted because of the rule twenty six violations because of the failure of discovery but i wouldn't be saying that that the evidence was lacking at all in this case there was a total lack of evidence of a connection of a specific causation  what we had is what is the event we had an asthma attack that event does occur in the absence of negligence in fact all medical testimony in this case says that there were a number of triggers to asthma and mrs smith's particular case hurt her triggers included she was allergic to dust she was allergic to cat here cold air better better office would cause her to have asthma attacks stress and a number of other conditions none of which are related to mold she was also had c o p d which also contributed to having asthma attacks we had nothing  respect to the events which would lead one to the conclusion that her asthma attack is something that would not occur in an absence of negligence now other responsible causes you have to exclude other responsible causes in order for you plaintive got a trial and damages along plaintiff in this case throughout the entire case case number one case number two failed to comply with the rules of discovery i d is now requesting a new trial based on damages but they're not really entitle to that in the reason more than one titles that they got what they asked for they got a trial on damages they again plaintiff is failing to do what it's plaintiff has to prove something but you have to do that in accordance with the rules you've got to present your expert you've got to give a copy of their opinion that has to be signed by the expert you have to give it to the defendant the defendant supposed to be able to to question that expert under oath to take the deposition to prepare the matter for trial point of did none of this not in case one not in haste to play to fail in every respect to comply with the discovery rules the district court in case to specific causation if it if it's not within the confines of the information that would be available to a physician as a treating physician so they were limited but the limit came from plaintiff's failures exactly it was all clinton had to do to get the evidence they wanted before the jury was a comply with with the expert discovery rules that is give us a copy of the report let us take the deposition move the court to open up the discovery such that they can reopen they did that in one occasion a new trial almost to you almost a year and a half after discovery time had closed in a court found that that was inexcusable the plaintiff here  has been a number of failures and those failures are all on the part of plaintiff unplayed discounts to do the things that the rule requires so any failure to allow them to produce the evidence was the direct result of failure to comply with the discovery rules it was no look poor judgment on pat part of the court there was no no order that was inappropriate the court said look you want to present this evidence as to specific causation you never even offered an oxford on general causation in the first trial we have the court permitted you to put in evidence of general causation without having provided the report now you want to turn around and present evidence of says the civic causation that you didn't do when the court gave you this this nexus by the virtue of the use of recip slow quarter which is improper to try to sustain your first bird but that would a verdict that was unsustainable in the first instance we're forced defendant has been had let him strong from the first trial from the very first trial go sitting in with an empty chair for client who was sitting here my clients in massachusetts over here by e mail trying to e mail me about jury selection he's trying to e mail me the help and then once we once we finally tried the other case we was present we got the discovery that it was it another case that was that was joined with this one that had been removed with thirty three evidence is quite different then attorney king's recollection so james to go was a general causation expert that was presented in the first trial weener was also a general causation expert there was also specific causation entered in by dr shapiro dr grant fast so the idea that there was no specific or general causation that defied by the record itself there was that testimony given expert testimony given the issue with regard to the the treating physicians which has been a recurring issue in this jurisdiction is the court eroni slee seeking to limit what the training can physician can testify to  experts rule twenty six a to z has retained experts only retained experts persons classified as the hired guns of a party are required to give reports treating physicians people who are not retort retained are not required to give a report all that's required is a summary of their opinions which was done but the idea that if a tree a physician in his course of his treatment he has to make a diagnosis he has to think what is causing this person to be ill arbitrarily bara treating physician from a piling as to causation when that goes to the foundation of the practice you have to eliminate causes do a differential diagnosis figure out what is causing this person to be ill  orphans diagnosed somebody they have to figure out what's causing the illness that's that's the whole point of the treating physician the the reason why the requirement is that is there for retained physicians because those are the hired guns that these are the people who butted the plaintiff was cut off from saying no here is my testimony from these from dr grant as of the shapiro that went to the heart of the fact that it was mauled that caused her illnesses that's point number one point number two the issue a rose in the second trial with regard to dr shapiro's opinions dr shapiro is a non routine physician he was a treating physician he continued to treat the plaintiff in between the times of the conclusion of the first trial and went in that happened in july july two thousand and twelve and when the new trial commenced in september two thousand and thirteen dr shapiro formed an opinion that the plaintiff was getting worse and that mauled was the cause  arbitrarily the district judge determine that this evidence cannot come in how do you spell a physician and he's not going to be permitted to testify based on some some scheduling deadline that didn't exist because when it came to the retrial the court never imposed any new deadlines it took a year and a half for the case to be retried in that time period there were no deadlines there was there was no new scheduling order there was no hey parties where half for the court to decide that motion for new trial and for the new trial to be risk rescheduled an additional ninety days to make clear to roger before the second trial that you were going to introduce evidence as causation through a treating government of the virgin islands versus let violations in this case were particularly egregious because they were the result of prosecutorial misconduct the record is completely clear that mr taylor was in fact as important to the events that led up to the unfortunate death  that the government had no knowledge as to her whereabouts the prosecutor had actually had missed taylor and her children removed from the jurisdiction sent to florida so it was only the apparently below are and of the mistaken impression that there was no means to be turned over to the jurisdiction and on the second day of trial and passing the prosecutor other prosecutor mentioned that ok a material witness affidavit could have been will but those were you know that was less than ten or twenty words out of three days of trial prior to that the government's position was that they had no duties returned to the jurisdiction they had no duty to produce even if the lawyer is and you're mistaken belief the trial judge should have known that yes i have the power to do this but the child drudge is the person who really solidified this error by saying repeated lee over all three problem with that is that these types of errors are in fact structural and they mandate vacate or that's what the supreme court has been leaning towards and that's what it teaches particularly in gonzales lopez when the court in knowledge eyes the right do you know your honor we believe that mr gately would have said that her second statement to the police was a fabrication and what supports are in the record is the fact that the first time she appeared to the police to make a statement  she just denied any knowledge involvement at all at least that's of someone who committed a crime you know the statement before that where she just i don't have any involvement i don't know who stole the money i don't herself and in doing so when she made that second statement she informed the tractor fish that she lets him have and fact discuss these issues when she subsequent to the events or honor your honor and the appellate division for some reason characterize that as overwhelming evidence the evidence was not so overwhelming and that's a problem with another one of the issues because yes there w some d n a evidence there were fingerprints outside his d n a was found on a water bottle but not all of the evidence rose to the level of scientific certainty and having only two weeks to retain an expert and government's rick work even if the expert had been eating one was the expert going to be able to analyze the results that wouldn't have been possible until the two weeks right before the trial that wouldn't be sufficient we did not have the specific items that were added why is the only thing that we were able to obtain are the results of the government's d n a analysis back up to mr what do you make of the way the trial court did not have the opportunity to compel her appearance no state we do this right this is what the judge offered as a suggestion of rectify me error where in fact the child judge compounded the error that's why they were  test result in the narrative was right the testimony that was not presented that we would have liked to have your honor is that her second statement was a fabrication that it was not shrewd and that she in fact throughout are very inconsistent so there's no basis to believe anything that she said in the second statement any more than as a basis to believe anything else that she said we can harass and help you do to the opportunity to question the gave is having us granted a new trial now i don't know if that's actually a help or hindrance but million surely her absence would have only been beneficial had those statements not been allowed to come in on this statement drafted the prosecutor had input the court had em put it was just confounding error upon error and we did in fact subpoena her so it's clear that the intent is there all along her testimony would have been helpful and moreover the jury sent a question to the court well it was deliberating saying why didn't they were appear to testify at trial it's clear that in addition to mr letson the jury who decided his fate found her testimony would have been ms taylor the first statement that he made to the police was made after given a b v i caution statement which is not a can to morano warnings subsequent to that stop talking when he was asked about other issues that all the essential elements of the murder and the assault of the young child i wouldn't say that he admits all the essential elements he said what he thought he needed to say that's far from sufficient for the government to yes your honor the government was led to believe by that witness that she was in danger in her children were in danger and we assisted a witness and relocating to remove her from that danger the man she claim she feared had committed murder and it seemed like a justifiable reason to assist someone getting out of the territory there was absolutely no prejudice the defendant was perfectly capable subpoenaing or filing i material witness affidavit where they determined the wrong impression that they couldn't do that is beyond me and all of the whereabouts  were told she was in florida i was never hidden from the defense what i believe happened in what seems clear is that the defense was scrambling prior to trial two of the issues presented for review show that the defense was scrambling they were looking for a motion to continue to get a d n a d n a expert and they also can find one of the witnesses at the last minute that they wanted to testify there's not going to be a witness for the prosecution and that's what's vitally important in this case  yes there was and the assistant attorney general informed both the judge and defense counsel that they could easily subpoena the witness in florida or issue a material after i thought the trial  said we have no subpoena power that's what she was under that mistaken impression i don't know where that came from your honor but she was also under the impression she's one of the joyce says we have no subpoena power we told the judge that we've done this in other cases and you can issue a material witness affidavit that's all in the record the government informed both the defense counsel and the trial judge that this person could be subpoenaed and could appear to testify for some reason they didn't believe him or they chose not to do so there is also evidence that the judge did not believe that this testimony was going to help the defendant she thought that it proved motive for the defendant and that it was not favorable i must be misunderstanding your honor because in my mind and i believe in the trial judge's mind this was going to prove to be another point of clarification as to why he committed all of these crimes as opposed to exonerating him in any way whatsoever it would have shown he is his his defense in part was that he he didn't commit the offense is he went and actually made a confession because he wanted to protect her i say whether true or not that was part of of the defense's defense or not to doing that the vital piece of information or your honor as the the district court that in fact in the jury come out and say what about heller where was she they did ask that question and that was a logical question since they had been read all of her testimony prior to deliberation which was something that the defense  yes it is troubling that neither the defense counsel nor the trial judge i saw fit to subpoena this witness it is also troubling that the defense counsel didn't object to the reading of the testimony if they now find so that it wouldn't be objectionable but it was objectionable from the start if they were as they are now claiming that it hurt their case at the time they thought it was going to help their case and that's why it's invited area around and shouldn't be on appeal in the first place moving on one of the other issues they've brought up for appeal because i just remember reading the trial judge had made a comment about this something to the effect of i think she's not seem to believe that her testimony would help the defense and there was an abundance of evidence that helped to help the jury find mr watson guilty in addition to his confessions there was physical evidence a evidence that was presented to the jury so his confessions were corroborated as would be necessary so they're about i don't recall those comments your honor i'm sorry so you agree with the judge with respect to the protocol which was taylor's this is presented to the jury yes i do but i believe that error is harmless and that the harmless error standard does apply in this case because this is not a structural defect the u s supreme court has never declared it to be a structural defect  the prosecutor have information as to the precise location of mystery in florida not the precise location unfortunately i believe the evidence shows that the government assisted her in purchasing a plane ticket to florida for herself and her children but they did not know exactly where she was living after she arrived but they did there was evidence in the in the record that they did help her relocate could you this may be something you you may not have an answer to but i was a little concerned about the fact that the appellate division which reviewed the conviction in this case took seven years t the opinion was filed in twenty fifteen so i think it was five years not that that was it in twenty ten but it was fully briefed two years before it was ready to be decided that's entirely possible and i know i don't know the answer to aware it is very difficult in the virgin islands to get these kinds of analysis done it's all sent off island and we are at the mercy of the labs in florida and so it is no one's fault how long it takes for it to come back but the defense was well aware from march and the trial wasn't until august that this was going to be an issue they had plenty of time to procure an expert of their own who then would have had yes two weeks but time because he would have known it was coming to review the analysis and then they they would have needed a continuance and obviously that's what the judge felt as well that this continuance was not necessary and was through no fault of anyone but themselves  amended prior to the verdict they were on notice as to all the charges all the charges are listed there they were all involved it was a minor it was nothing additional it was just a minor amendment and they were prejudice in any way whatsoever subpoenaed and he did try to make the defense counsel and the judge aware of that and i said i cited to the appendix where your honour's can read that he specifically said she can be subpoenaed that we've done this in other cases your honor do people in an effort to inform the defense and the judge joined appendix volume three page six sixty seven that she now lived in florida and that she could be  again counsel in total of what she she mentioned was the governor's position with the sense as you would imagine your honor we do not believe the sentence was excessive and we certainly don't believe that there was anything to remand all of the sentences were within the statutory minimum and there was some of them were even merged together  the gravity of the offense here certainly equals the severity of the sentences we don't believe there was anything to reverse on that matter there's nothing further  another issue the government services that mystery was in florida so we could have subpoenaed her we can't issue a subpoena in the state of florida we need to know where miss taylor is florida is a pretty big stay there i'm sure there are counties have a greater population than the entire virgin islands once the government sent her there and didn't bother to keep track of her location or had her location in didn't reveal it to the defendant that made it impossible for us to  defend those charges new charges were added in the trial court's judgment in commitment she specifically states that without the essential elements no crime is alleged will serving only permits amendment if no new crime is alleged at the trial court's ruling is inconsistent with the the federal rules of criminal procedure that is stated in its own judgment and commitment second was the issue with the before midnight in fact all the evidence show that it was committed around four am for him thank you very much thank you both are well are you ca address two issues both of which i think need both simplification and clarification they are the district courts race judicata and final judgment decision and then judge  decision in petaluma and i think both need clarification with respect to judge or senators decision hundred two to carter he basically avoided the substantive question that's before this court and that was before  him and he did so by initially stating a principle of law which the i r s spends a lot of time on the brief but we don't contest at all in the context of this case that statement is that when a federal court not contesting that principle of law but we are seriously contesting is the other statement made by the judge which was that notwithstanding the third circuit's potter reversal of this court's judgment there could be no doubt that the third circuit's presidential decision constituted a final judgment on the merits but these consolidated the peals judge sanchez and the i r s are disregarding the fact that the prior residency case which i argued involve the consolidation of appeals from a number of tragic men's polow all of which were inextricably intertwined with the residency decision  reversal in part by this court therefore we acquired that these prior judgments be modified amended or in a couple of cases maybe even affirmed but something had to be done by the district understood that let me be very specific as to what needed to be done into the final decision of the court and there's nothing left but the are outstanding major questions for example the virgin islands had filed its own actions against the f prize judge sanchez dismissed all of that because he found that all five of the members of the vento family were not residents of the virgin islands  that's what he found is correct and this court reversed as to to finding that richard and nana and one of the the the parents were residents of the virginal so the decision the judgement that that dismissed had to be modified because right now if that this is it was final the virgil gets no money yes and it's all consolidated in the appeal with respect to residency because there were all preconditions of it as specifically very specifically in the notice of appeal these prior decisions par judgments were part of the notice of appeal and specifically consolidated if you look at the number on the top of the decision with respect to residency it lists relieves these numbers because they had to be there let's  specifically the judgments that were entered in this in this case trying to remediate residency i'm not trying to relive it get anything the core question your honor which underlies everything is who do they pay the taxes to each of the people that  judgments which gave it all to the i r s and nothing to the virgin islands otherwise the virgin islands will never be able to collect this is a judgment throwing out their case and the i r s has a judgment which entitles them to collect on not only from the three girls but also from the two people who are not residents of the virgin islands with what i want to ask you to do first is to reverse with respect to the finality question  district court judge knew that things had to be done he ed issued an order saying let me know what i have to do the i r s says you have to if you knew judgments and modify some of the judgments and then we make a motion at that time to dismiss on jurisdictional grounds so it's timely and it's not a collateral attack it's part of the direct appeal good on that aspect of the decision say just because you note that you had jurisdiction does it mean that you cannot challenge the substantive subject matter jurisdiction there's a unique aspect here and let me try to give you an know that's the most decides the threat is correct and therefore what you have to do is correct the other judgments that have been entered predicated upon that and that had to be done by the district court this record had to come up with an order now which says with respect to you know the the the virgin islands application of it's left off with respect to these l l c is the the the it correct has to be you can either do one of two things one is you can remain for him to address the substantive issue or we suggest in our papers that since it's all been brief that is the legal issue you can address it of  by this court best that's a question of the traditional economy and it's a question of the attitude that this court has you want the trial judge the first give you an opinion you re mad at let him make a decision if he say it makes no difference because it's a matter of law you can address it on your own that's completely up to the discretion of the court my preference would be since you have everything decided but that is what work where you don't have to do the work i understand the reality of the situation but what i was trying to say the specifically address for one moment is that there are two steps in this process is the partnership step and then you get to the partner step you have to have a partnership step resolved you ask the question as to whether or not there was jurisdiction i was going to give you an analogy let's assume you get a ticket from a  philadelphia police officer returnable in the philadelphia courts but it's issued while you're outside of philadelphia the way this structure is you have jurisdiction to go to the philadelphia city court saying you have to dismiss this because the officer had no jurisdiction to issue the ticket outside of of philadelphia that's essentially the way the structure is it strange but that's the structure in terms of the code it says you have to file within ninety days a challenge to the f b i office then if you go through the whole structure of it you can then challenge the subject matter jurisdiction in the in that court for ultimate determination that you didn't have jurisdiction the i r s didn't have jurisdiction and that the district analogous to the situation that i that i described let me just quickly jump over to judge the decision in petaluma because the judge is highly regarded but there is a part of that decision that just simply makes no sense and what he did and i'll summarize it very quickly he did two things one the issue had never been raised by any of the parties you know he's decided that this is the answer and none of the parties addressed it and never was raised before and he basically said that when you have a statute on the set it says it becomes effective october for two thousand and one and then it says see the prior temporary regulations he said oh that's incorporation by reference well the word c is normally not in cooperation by reference particularly in the statute says that the whole section becomes effective october for two thousand and one and then you read the preamble which we cite and the preamble makes it crystal clear that this is not an incorporation by reference the i r s believed that the temporary regulations were valid so they would never suggest you incorporate by reference they're saying they're valid and so you're in a situation where you incorporate by reference when no one thought that was incorporated by reference and then he he does something which is also a little bit unusual and he says well they also said that they eliminate the pl prior temporary regulations what is unusual about that is if these regulations super regulations are still in effect you know eliminate them you incorporate them and you make them part of the new regulations no they've been eliminated so i strongly suggest if you look at the first part of his has some value they sometimes stop a judge from going off on a frolic and detour and that's what happened here he went off tried to find a reason and it's been criticized by a number of legal scholars because it just doesn't have any basis  it please the court good morning for the record my name history some o'clock when and i represent the united states the government's position is that the district court was correct in refusing to reopen this matter when the case came back and including the one i should back up an appeal of the government's position was that nothing needed that even if  there was a reversal nothing needed to be done to the final judgment accepting the f pause merits adjustments and conceding the penalties because  the other side's thought it shouldn't but on the last page of its opinion in the residency case this court said we don't need to look into the residency of the federal park his because that will follow with the residence of the individual partners so united states so our position is that the first the final judgment in the uk pub federal i pod proceedings one of judgments plural thrust of them was to declare that the partnerships were sham and once you get rid of sorry a sham partnership then it's the l l c these are the individuals behind them   that the transactions were did not create the loss this was an abusive tax shelter that's called son of boss and they  final because the federal rule is that once you know a final appealable judgment is centered which unquestionably happened that has precludes the fact even while it does not appeal so this is attempt to that no judgment no final bill of judgment has been that well when the case got back to the district court the district court said and there are several cases not just the federal up our cases what if anything do i need to do we need to be done to dispose of these cases in light of the mandate which is a reasonable question and he asked the parties to to tell him and the government's position was  i think i mean i mixed up just at the moment about whether this is the government's position or their position both the government's position which is that j a two eighty seven was that all confirmed resolution of all issues raised in proceedings in a pub so there wasn't really disagree too much disagreement that these cases were basically over  the fact of the judgments that already went up on appeal and were and the courts they could have in those direct appeals they could the other side could have challenge the subject matter jurisdiction of the court but they didn't they conceded it and the court found i think  oh they would they invoked they didn't just submit to the jurisdiction of this is they brought these cases and they allege that there was your subject matter jurisdiction so but even so the supreme court if you waive that then you're still precluded and that has to be right because otherwise every judgment could be reopened as void judgment when this when it's clear under rules under the cases under rule sixty before that there has to be that it's a much more limited question that it's there was an express admission that there was subject matter jurisdiction in the district court but the cases also say that  even if you don't admit it and you merely way that by the time you get to the end you can't collateral it is race judicata and it you waive it by not objecting to yes you can and the supreme court said so in the chico county drainage just their case and this court has said so i believe in the marshall and hides cases