sure i understood what you said at the outset i'm happy your three clients you would say car controls and so the only the only way out of this jam is in bankruptcy you is that accurate yes you litigation in very likely will have the opposite of its intended effect and by that i mean it will result in fewer competent capable people willing to take these types of high level jobs so turnin did not address snyder and dylan specifically but if there are there are certainly conflicts and that's the point that the two primary points i'm trying to make here regarding being liable for your subordinates for the conduct of others and being liable for failure to warn or protective regarding the st one cart and holds that snyder in delhomme are liable for the water switch but the most obvious evidence that this is incorrect and basically holding him responsible for support holding snyder dillon responsible for subordinate conduct is that in and during girton director wyatt who is the head of the dea and that's the department responsible for regulating the water he's also alleged to have approved that same water switch yet he was dismissed why was he dismissed because he wasn't involved in the day to day activities involved in a switch the water treatment decisions the upgrading of the plant same goes for snyder and del and they're exactly like why and in fact even more so it is alleged in these cases and in carson that director why hasn't he issued his approval and snyder in delhi and based their cannot so in that way carson improperly expands and i think this touches i just want to go real quickly to girton oral argument judge white if you were caught in that argument the court folk just a lot of what what center of the most the most liable the most likely to be held liable for that unconstitutional conduct it was the flint city official officials who were involved in the day to day activities leading up to this at the switch and all of that the next circle had the d to regulators and it maybe they weren't involved day to day but they did have an oversight role at the outer edge of that least likely where director lyon director y and chief medical executives wells all high level officials that had supervisory roles all dismissed him and outside of that that's where you find snyder and don't have those individuals reported to them and that's all edged in the complaint so in order to on liability more specifically because carson also missed the mark on a substantive due process obligation to warn to protect the public the shame he says there's no such duty in girton followed that rul don't director lyon was alleged in girton just like he's alleged here to have also failed to sound the alarm when he received information regarding lead in legionella and i'll point you to the paragraphs in the complaints in this appeal paragraphs one hundred and ninety nine through two hundred and one just like those allegations against director lyon that he failed to warn him protect despite having information carson held its night or downplayed in delayed by not switching water sources back faster by failing to supply water filters by failing to quickly declare a state emergency again liability for failure to warn and protect no case is a stablish clearly established that not switching back faster failing to provide water filters not raising the red flag constitutes a constitutional violation this is typical it in kind if not in degree of the type of bad judgment if you will not was something again that was talked about in the dirt curtain oral argument that the political process is intended to address failure warning protect i and the complaints that are involved in this case there are probably subtle differences for example in the walters case i believe that there were some players that did not  thank you andy i'm respectful of the point that you're making here on i do want to make two points or three points if i may st in terms of either guards carson control and it remains our position that the allegations in the plainest complaint don't pause that we allege that any n d q defendant created or perpetuated the exposure to allegedly contaminated drinking water i don't have been in that position whatsoever i do want to make a point that in the carton decision it went beyond girton in my view because it focused on whether there was a failure to respond for example that del toro or there was a suggestion in the cart and decision that there was a failure to respond i do not that in fact in the aftermath of the del toro report there was a requirement that install corrosion control and that to me does not suggest believe that what judge sutton indicated in the decision bears consideration here i believe that the natter if it is remain and should be limited should limit reach the level of possibility in the complaint excuse me eleven question is there anything in this complaint used to be your client different from the complaint that was considered in the c expanding before we get to what that those are saying were they saying anything different than was stated in the carthusian complaint i think so in some regard i believe that  those are all consistent and this in these pleadings there they do further i did this complaint identifies that he had the authority with mr croft to direct the switch but again it further lacks any subjective awareness of the risk of serious injury and they have closer conduct to counsel i'm not sure i'm understanding your answer i was assuming there was not a material difference between this case and the cards an opinion is there something in this case the cart does not address as far as in the plea within the four corners of the pleadings correct is that the question i mean i think i'm just trying to ask the same question judge moore is asking and i wasn't sure i was understanding the answer this panel can't read this car right and so i just we're just trying to make sure the resort having argument is just making sure we're understanding whether there's some reason carson doesn't control and you know you just have to tell us that there's still the in bank possibility that's that sits out there but we just want to make sure for this panel decision we are accurate as to what carthon control as i came into the argument thinking car think controls just tell me why i'm wrong or you're correct in the assessment of the law contained within carthage but the pleadings are the driving force here as the basis for this appeal and the question is the pleadings on the consistent with the pleading contained in there contained within the body of the complaint relating to the flint water being safe and that he failed to respond to a foil so to the extent that those are consistent yes they are consistent with the car completing how is this case differen we're all asking the same question and i think we are all suffering who think confusion what how is this different if i could line up i do have a teacher prepared i have a teacher at that identifies what pleadings are here under car thing what  alleged i think they lead to a different and what is different about the allegations here that lead you to make it different in and respect i don't want to misrepresent based specifically on how their alleged some  those that are alleged in the searle's opinion that were specifically as mr zandi pointed out with regard to those that that were relied upon by the court in carson however it's our position that copper testing and he used instructions from the mt to use website to hand those up for sampling with the city of plants residents and there after he was directed by individuals at the m t v you his regulators the individuals who could  issue him citations for not following their instruction you to remove certain which is certain water test results which were in fact removed by these two officials and that's a  straight on the face plate here with respect with regard to the allegations against mr glasgow it's our position that they do not demonstrate in different circles disregard plaintiff's rights i have seven seconds for any questions or i suppose to ask the question in a different way in order to rule in favor of your client in this case would we have to overturn part of your hon because the allegations the substance of the allegations contained within carson are the same that are relied upon in the circles of opinion i can't i can't say it wouldn't require you to overturn chart urquhart and only answer any answer is yes i you know i appreciate your elaborating there thank you and they have their questions and address the individual allegations just maybe in reverse order i think all of the allegations that are for my might for my purposes you told me what i need to hear sure sure  allegations just to determine which which allegations are in the class complaint versus the individual complaints and vice versa we found that you know the risk of going to be on it there are obviously certain allegations that are in the class complaint leading to a class action but there are also allegations in the individual complaint that are in the class complaint the one that i would point to and it relates to governor snyder is that not only was governor snyder aware mclaren hospital i don't think we have that allegation to my research but that said i don't think the allegation was in your either and we have the other allegations pertaining to early is his refusal to reconnect to  ws water service in a timely fashion and i think the last point that i liked to make and just to to respond to my my colleagues on behalf of governor snyder i don't think that  last point just in terms of you know increasing the societal costs because fewer people will run for higher office the unique tragedy that is the flint water crisis cries out for a finding responsibility cries out for civil liability and i i just do not believe that fewer people will run for governor of the state of michigan  any questions any further questions mr walker or any other points mr markey would like to make you still have time i think i may have at least just a few moments i just and looking at my notes and  i do actually have one very brief last point to make your honor just to respond to my my colleague mr party ery this isn't a case of a mere failure to respond it's not failure to provide notice to the public it's  question the q defendants will still be valuable fact witnesses and the fact that the discovery might show that either these allegations are substantiated or th signed by judge levy but there was a stipulation to gain access to some of the subpoenaed investigative files that the mission attorney general's office conducted including investigation into the i think at this point alone it would be unnecessary thank you again your honor and really appreciate the court's generosity with their time on these important issues and i do want to state a few things yes we agree carson controls there's no significant differences here mr walker did mention that here snyder is allegedly personally involved but he actually said that personal involvement its authority over these other individuals that's exactly the point we're going to just because director wyatt had  authority over people he was not held liable same should apply to governor snyder and i think that's a very important point to make girton how people liable this is how they describe the current court describe the a constitutional violation if it was a forcible introduction of a poisonous substance and into individuals nothing alleged against nygard and even remotely approaches that and girton recognized the two important limits on liability that were not recognized with respect to snyder and doma so i think it's important it even if review is not granted in this case certainly members of this panel have the ability even if they have to follow cards and to write separately to or to explain why they might not agree with certain ways in which the heart of an opinion expands curtain and finally my point is to be clear the state empathizes with the extreme hardship that the flat water crisis has placed on the residents of flint and i can assure you that the state of michigan remains committed to the people of flint but the limiting of follow the curtain and to recognize those limiting principle so if there's any other questions of the court may have i think i might have a little bit of time left to address those any questions thank you for gate reaction to judge white's question and that is there is a concern about how much discovery is being allowed there's three days of discovery for some of these witnesses including one of my clients i don't consider that to be focused limited discoveries whatsoever notwithstanding the suggestion that judge levy has control wide open i believe that on the limb is that this is a question well i believe it's reviewable to the extent if you decide that this case is controlled and has to be sent back for a consideration of facts that you can limit that discovery to focus on the liability the three days of discovery is not focused on liability for my clients if you will if you all proposed some lines for the district court to apply in terms of whether you want to think of it as concentric circles if you proposed anything that would limit discovery and the reason discovery applies to qualified immunity is that's the stakes that's the whole client and the minute you deny you're off to the races  but my my sensitivity and sympathy on that point goes down if the defendants aren't proposing something are you proposing something well if i do not get the relief here i will you're on and i believe that place and i see your heart is that for a time out and so we appreciate your argument in the arguments of every one of the council hear me very much appreciate your being here and