hear me everything's fine all right so we'll begin with mr small star good morning judge what in may please the court brian smiles back for two parts today dupont would like to address only one fundamental error it dismantled the crux of wisconsin's risk contribution doctrine fungibility if the cracks about doctrine and the reason why thomas excuse the need to identify the responsible pigm manufacturer but paints are not fungible so what was the error but the district court to expand risk contribution from white led targets pigment to non fungible paint so much and the only could i just just to get me off at least on the right track in some ways it's a little strange reading the briefs because reading your brief you make that point very clearly and reading the  brief they seem to agree that this case is about pigment not about pain so what i'm wondering is whether what we really need to focus on is in a sense the alleged distribution of the pigment by means of there being an ingredient of the paint so that's that's the best i could do to put this together in some sensible way and if you could comment on that yes thank you i think you've identified the nub of the dispute and what what the record shows is that this really was a case about paint not paper because the evidence that plaintiffs introduced against a dupont included evidence between and twenty five and one hundred and sixty six when dupont did not manufacture a target pigment but did manufacture paint and to get specifically to your question about distribution i think the the nub of the pla f's case boils down to two words in a sentence that thomas calls an element of a risk contribution claim and what that sentence says is that the plaintiffs have to prove that pigment manufacture produced or marketed white lead carbon it pigments and what the plaintiffs would ask you to do is to ignore the st two words of that sentence they want you to ignore the requirements of being a pavement manufacturer and instead they focus only on the last two words or markets because that's their theory of how the distribution of non fungible paint might be implicated but in other words to be clear you think we need to read that as if it absolutely there's no one else in that sense and when you look at marketing the plaintiffs are wrong about what marketing means in this context because thomas and collins never say that you market a fungible raw ingredients just by selling a non fungible finished product that happens to contain it the way collins uses marketing is cullen says that filmmakers market d e s by selling pills so the product they're actually selling is the same fungible product that bulk manufacturers produce and in any event marketing what plaintiffs say for this reason because then on the one hand you would have thomas saying that bunch of bill and he is the crux of risk contribution you would have good joy saying that punch ability is a prerequisite or risk expanded the theory to the pain was there other language or something else that was pertinent to the district court no your honor i think you have accurately characterized the district court's opinion that it's that it's as you all know very very well has a massive history to it and i'm sure there were tens of millions of dollars if not more spent along the way in litigating you know on both sides but yet it seems trial how is it in a matter like this that there was confusion about the scope of the applicable theory throughout such a massive stretch of the litigation how did this happen your honor i think this happened because the plaintiff very changed throughout the st nine years of the case dupont and the other defendants relied on plaintiffs saying that they had sued us as pigment manufacturers not paint manufacturers and so we relied on that because that is indeed the theory of thomas and thomas requires that you be a pigment manufacturer and when all of a sudden that the motion limited stage plaintiffs tried to introduce  audio right at the moment i can't see you but i think with leave the court i will proceed on audio only that would be fine and we will probably get you back in a minute so if there's any doubt about the scope of thomas good joy results that doubt because it's only goes out of its way and footnote ten to clarify that the product at issue in a thomas case has to be picked not paint and good joy said that in footnote ten because the wisconsin court of appeals made the same error that the district court did here in paragraph three of the court of appeals opinion in detroit the court of appeals said that thomas applies to paint manufacturer that's absolutely right your honor and i want to be very clear that the only relief dupont is seeking on appeal is a new trial and in that new trial the plaintiffs can pursue a thomas risk contribution claim against dupont for those seven years when dupont was a manufacturer of white leds carbon and taking it but not for the subsequent four decades when dupont made non fungible  like to walk through fungibility and why paint which is the product that the district court expanded st contribution to cover this is not just limited to small talk let me just follow up on your last statement please so i was a little surprised you did not join in sure when william says arguments with respect to the negligence and product liability claims and i just want to confirm that i think you just did that's right your honor we are not we have not joined that part of her and william brief we are not pursuing those arguments on appeal the relief for seeking is very narrow and the relief for seeking leave plaintiffs the opportunity to pursue exactly the claim that thomas does allow and so they sixty six as the basis for their risk contribution so he said you know i'm just i want to make sure i'm not putting words in your mouth it sounds to me in terms of this concept that the district court had that the pigments were being marketed through the sale of the paints which mixed together the pigments and whatever the diluting substance may be that you're at least saying that that goes beyond anything that collins and thomas recognized as eligible for this risk contribution theory yes you're right and the reason in addition to contradicting thomas insofar as it were limited to fungible products and limited to paper manufacturers the other problem with that expansion which is just the right word for what happened is wisconsin's legislature for b expands expansion to other products because in wisconsin statute ninety five over forty six the wisconsin legislature says that whatever thomas says you cannot expand a risk contribution claim beyond products that are chemically identical and different paints are not chemically identical they contain they're based on different formulas in paint different ingredients in different combinations and so the paints are actually physically distinguish e and so under the statute that takes this case out of his contribution but we would have to overrule gibson wouldn't we to find statute applies to the case here no your honor we assume that gibson is good law and correctly decided for purposes of our argument because what gibson says is that you cannot retroactively apply the statute to a vested right and so the question is whether this novel risk contribution claim that goes beyond thomas is a vested right and it's not because thomas has the limitations to fungible products and to pigment manufacturers and so this is not a previously existing common law claim that's the term that gibson used in order to be protected by gibson the claim would have to be a previously existing common law claim and because this claim goes far beyond what thomas allows and just got to your point goes far beyond the case that was presented for the st nine years of this litigation it is not a previously existing vested right and it is fully consistent with gibson to apply the statute here i think i meant fire but all time if the court has no further question for reserve my time thank the product is indeed pigment i understand from from this giant amount of things that i've read for this case that it is possible for a chemist to analyze paint that has been applied somewhere and figure out which pigment is in it figure out that it's you know white carbonate lead right white blood carbonate sorry so wouldn't that lead us to say then that at least anyone who has been a pigment manufacturer whether they were just manufacturing pigment and making their own paint or they were selling the pigment for somebody else put in paint they were in fact distributing that  understand that but what i'm trying to get at is if you're going to get too literal about that you would say that no one's liable for anything because people don't just buy the pigment they buy the pigment once it's either because they're going to mix it themselves as a master painter into some sort of paint or it's a commercial transaction in which they buy the pig men to matt mix them selves so even if we all agree that it's pigment there is a way th dollars which is of course have been in our quote from it the court says it doesn't make sense does shield of finished product manufacturers from a duty to warn about a dangerous component of their products software component manufacturers are already shielded from that duty and what the courts making clear this was six weeks before trial is that the finished product manufacturers could be liable for the finished product are you that just under a press contribution theory putting aside your arguments about that the negligence and strict liability claims at issue here you're not disputing that sure when williams could distributor of a component was never conducted by the court jury wasn't instructed on that point and that wasn't the argument that went to the case and so they didn't make that case or alternatively a post could bring a complaint against payin should not be tried on any theory of negligence writ large categorically and the reason for that is the consequence of you receiving the benefit of a favorable summary judgment ruling on the negligent failure to warn claim that the plaintiff advance so that's how you're distinct from dupont right you're  under no circumstance should there be any trial on any theory of negligence as to sherwin williams because of the consequence of that summary judgment ruling well i  general duty of care under ordinary negligence that didn't that wasn't so tethered to those three things or just a duty of care to those who were selling the product and  i'd like you to explain why that's not the case sure well st off the duty is separate from the fact and give it away in footnote suddenly it's clear that negligence and strict liability and risk contribution faces the ruling on the duty to warn in the negligent context that there was not a defective product because they weren't pursuing a manufacturing defect and couldn't pursue a design defect under that is that is correct your honor and the you just i'm sorry to interrupt because i want to follow up on what we were asking you before i understood that you were making this negligence argument and that it carries over into your strict liability argument as to sherman williams's liability as a manufacturer of white lead carbonate not just paint but you seem to be backing away from that so they are free to pursue that like you have to be liable or you have to enter what is the liability under wisconsin law for component manufacturers straight carcase lays out the standards by which a component there was no evidence of white blood the district court specific rulings on summary judgment in the negligence and strict liability concepts weren't limited to paint though you either and they  consequences but there are different forms of that right that sob that's the analysis that the thomas court undertook but you have to remember that thomas was decided on a motion for summary judgment so all of the facts were assumed in the favor of thomas and the court specifically stated that in a footnote but the thomas court did not establish a hul of absolute liability for the naming fractures of white right well and we believe your honor that the district court improperly limited the historical evidence that supported the scientific testimony that there was no mention between the mcgregor the scotch leg pain which is the only way that the white led carbon neutral mcgregor could have come into these homes and what what happened  at trial judge was the fact that the court limited the defendants in their ability to present evidence that there were other manufacturers of white lead kermit in the market pla and particularly focused on national lead i think you're getting into the district court judge's decision to buy for kate the trial they must have known that there were at least you know dupont's and sure when william say that there were other possibilities well that's what's really interesting judge is the fact that the defendants were prepared to present evidence that there were other manufacturers besides the defendant and the district court prohibited the defendants from even mention other manufacturers of white like harvard and in doing so will undermine the pathway that thomas created for defendants to show that their product did not reasonably cause the plaintiffs injury so when you say undermined though it sounds as though i'm understanding you that you were able to put your expert on and show that these samples analyzed didn't correspond to anything that you're the predecessor of your client had manufactured but that somehow your case would have been strengthened if you would have been able to say and here is this other company that was the eight hundred pound gorilla in the market national lead and get the jury to look at it that way but is that really necessary once you've once you've shown that it wasn't your pain why does it matter how many other people well judged the jury was left with the mistaken impression which is not true that the three defendants the four defendants in the courtroom predecessor were the producers of wife who had heart and throughout the trial played his counsel referred to those entities as the industry so when the jury goes back into the courtroom and each of armstrong dupont ensure williams was from the only manufacturers of page each of them shown to the jury that page containing their wife's lead carbon was not in the samples from the plaintiff homes but the jury goes back to the jury room and one of the jurors says to his fellow jurors what did you think of dr brown's testimony that there was no scotch lead paint in these homes and the other jurors would say with thomas that said when the burden shifted to the defendant that you had to prove that you didn't market or produce quite like carbonate either during the relevant time period or in the geographical market where the house was located it didn't say anything about it whether or not anybody else produced it it sounds to me like that's pure speculation there could have been various reasons they didn't think you met your burden of proof well and that's the distinction that you have to understand between the evidence of other manufacturers going to the st step of time it's whether or not the defendants marketed that product within the relevant marketplace during the time  period but that's my action then whether or not evidence of national let should have been let in to this phase one of the jury but judge rather than going to the issue of whether or not the defendants were in the market in the st instance the evidence of national lead goes into goat goes into the question of whether once it's established that the defendants are in the marketplace can they exculpate themselves by showing that their product did not reasonably contribute to the pointers injuries and the younger people flirt the district judge to this concern i'm sitting here thinking that was really your worry it would have been very easy for the judge to explain your duty is only to determine whether these defendants were in the market there were other companies that you don't need to concern yourself with something the judge was concerned about greatly complicating that st stage of the trial national had come in since its presence isn't really relevant to the risk contribution theory that's t sorry we're with the district court did was say i'm concerned that evidence that helps presence in the marketplace is going to confuse the jury well many times evidence comes in on one issue with her case and does not apply to another issue case this court could have simply instructed the jury that evidence has an all or other manufacturers of white lead carbon it goes only to the exculpation defense of whether or not the defendant showed that his product could not reasonably have cause injury not to whether that defendant is within the pool in the st instance mr bascomb you'd agree that reviewing this for abuse of discretion right on bifurcation right that's true on it it it seems very hard in my view for you to fault the district court for on this point trying to inject some measure of a way to simplify a case of extraordinary complexity for it before a jury the moment national lead is injected into phase one and national light is not present there's just all kinds of conjecture in both directions that can be put into the air or the phase one proceeding well judge we are greedy that no one can be expected to receive a perfect trial but there are minimum minimum standards and the defendants are entitled to produce evidence the judge the judge ruled that thomas was not the defense and thomas was not limited only to the time and place of the manufacture and marketing of the whitely carmen the judge ruled that you know order exculpation defense under tons the defendant should be given by the latitude to show that in fact there probably did not cause the plane to his injuries and that's why he led with the chemical evidence to shift gears for just a moment please you i just want to confirm that i didn't miss something i did not see your client joining sure when william was arguments with respect to the negligence claim you joined the strict liability but not the negligence claim is that correct and that's correct if i if i might i'd like to spend a minute talking about the applicability of section eight hundred and ninety five point zero four six the beauty of the common law is that it can evolve over time to address changing circumstances and that's one example of that process is the thomas kids however legislatures have the right to say no you've gone too far we're going to vote to change that  in fact were partly scum to a court challenge existing common law courts often say that this is not the right forum for that if you don't like this law go to the legislature that's exactly exactly what panel of this court was follow the holdings of the wisconsin supreme court in erie chases and it is not bound by the forecast of wisconsin law made by a previous plans as we address in our grief the land's end injury occurred well before times the wisconsin supreme court split thirty three dollars of the clarke case on the retroactive application of the statute isn't that pretty good evidence for us that the issue is on settled in wisconsin law and wisconsin supreme court and that the rational basis test applies and if there is a rational legislative purpose but legislation survives the constitution shall all right you're just about out of time  requests from these appellants the st is they actually are looking to limit or to overturn the thomas good boy and gibson's decisions and effectively eliminate risk contribution in white land carbonate cases in wisconsin and in the alternatives it appellants requests that this court ignore the jury's findings and the significant evidence that supports those findings and instead insert itself as a super jury in this matter the reality is all of is at least collins is crystal clear that the product the fungible product remains unchanged between the time that it's put out there in the market and the time that the pla e is ingesting it and the one that carbonate seems to be susceptible in the wisconsin court said that it was two in the same analysis but i don't see thomas going so far as saying that the st issue is dupont manufactured white led carbonated at its own production facility in philadelphia between one hundred and seventy one thousand nine hundred and twenty four dupont continue to manufacture white lead carbonate by outsourcing some during that time period one stands very explicitly for the proposition that the incorporation of white lead current pigments into paints by these manufacturers is a basis for the risk before you were all pigment manufacturers that is undisputed we sued them as pigment manufacturers it is i'm just going to get you were you are disclaiming characterization that the appellant's are making now that this was a paint case you're saying this was kate i apologize that this was not a pink case this was a white led kirby case the jury was asked to make findings based specifically on white lead carbonate about ingestion of white lead carbonate injuries caused by a white lead carbon at the defendant's conduct chemical analysis of the paint in the three in the homes of the three plaintiffs would identify the manufacturer of that paint so one of the ideas behind risk contribution is you just have no way of painting a manufacturer couldn't you tell by analysis that this particular residence has sure when williams paint in this has somebody else's  that's not possible your honor and the defendants have raised that for the st time really on this appeal this concept that you can identify the manufacturer of paint with chemical analysis that is incorrect what happened here at the thomas court held and nobody disputes and in fact even the defendant's own expert agreed there is no way to identify who manufactured the white lead carbon and it isn't any layer of paint that is on any wall of any home that is an impossibility i thought dupont an expert did just that no du pont's expert didn't do that what do pons expert did was it attempted based on a limited number of formula cards from the limited number of time to not identify who made the pain but to see if they could exclude dupont as a manufacturer of that particular pain not the paint but the pigment  expert focused on the white lead carbon pigment and whether or not that pig meant that it produced could be found in the plates of the homes of the plaintiffs and dr when i was the expert who testified on behalf of all the defendants there is no way and dr palen i testified there is no way to identify to a chemical analysis the manufacture of a white led carbon that is undisputed he what the defendants asked the court to allow over plaintiff's objection was to instead substitute this change analysis that they were doing and what they attempted to do was see if it was one of their chains that was on the wall and then they took a morass of the that is not supported by the evidence but if it wasn't their pains then therefore it could not be their white lead carbonate hignett that is incorrect to the extent that paint chemistry and paint analysis came into this case it was over plaintiff's objections or this very reason because it inserts this level of confusion into the case so misfits patrick let me let me the scope of the liability theory of the plaintiffs absolutely on to it and it did nothing to change in any way the scope of thomas thomas establishes a paragraph seventeen that the defendants in every word let me ask you the question a different way in your view were the parties operating on the understanding that with respect to marketing or promotion activities that that that they were pertinent only during the period that a defendant manufactured white led carbon in no what thomas and i let me put it this way i believe that's what the defendants understood and i believe that the defendants believed that this case and have agreed on until this appeal that all of their conduct in producing or marketing white like carbon including white like carbon it paints that they made was relevant to their overall duties and was relevant to the strict liability claim what the district court did in that decision was also observed they even if you were no longer produce a producing white led carbon which consistent with the clear language of thomas magnifying the risk that had already been created by the production of your white light carving but it's ninety marketing up that the white lead carbonate after they stopped manufacturing it it's the marketing up the products that contained the white carbon it and that's what your arguments to the jury room you said in your closing argument i'm asking you to judge their actions their deliberate decisions to make white lead carbonate to make white lead carbonate products and that was the whole focus of what the marketing aspect of the sentence and thomas meant that that marketing the district court judge held included the products that contain the white black carbon not just the white like carbonate pigment itself which is exactly what thomas said so you agree that i want to make sure because i think there's a lot at least in my mind and i'm i'm sorry there's a little bit of it in some talking around each other your theory to the jury here was not just that the defendants could be held liable under the risk contribution theory solely for producing white lead carbonate your theory included producing white lead carbonate that was used it a product that contained it is that fair mr fitzpatrick yes and that's exactly what thomas identifies and your brother lying on that the basis for your presenting that theory was the district court's ruling that marketing means more than just marketing to white light carbonate pigment that marketing beans having a product that includes at whiteley let carbonate picnic correct and they're the only place i would i would disagree with that is we were relying on the district court ruling we were relying on to clear language of thomas ok and how did your alliance was just a court ruling thomas your reliance was on that marketing language that marketing being something more than just the pick the w l c product itself correct correct and you don't even need to look any further than paragraph five of the thomas right at the beginning of the thomas decision it identifies about entire where the court said that the product was the white light carpeting not the paint so let me historically can be made with a number of different pigments there is white light carbon a pigment there there's leaded zinc oxide we as plaintiffs had a very had a heightened burden be could not simply prove that these children alleged lead poisoning from lead paint we had to as paragraphs eleven dollars twelve  identify show something higher which is that the specific pigment that they ingested was white lead carbon and that's question one on the jury verdict form so we could not say they were poisoned by base paint and therefore these defendants are liable we had to go through a chemical analysis to determine that it was specifically white lead he'd macartney it meant they were in those paints and a higher toxicologist that could tie the lead poisoning specifically to the white lead carbon so the fact is thomas thomas mentioned kate over three hundred times in the decision because the thomas court had absolutely no problem with the concept that the way that white led carbon it got from the producer onto the wall of the home where it could poison child is either in a prepared paint or in something called the white lead in oil which is you you include the pigment with some oil and some dryers and put it on the wall thomas had absolutely no concept album with that concept and thomas as you read through the facts specifically references the fact that not only did each of these appellants produce the characterise it characterises characteristic of the white red carbonate disappear when you start arguing that it's products that contain it because i think you would agree that the fungibility was really one of the foundational pieces for the court's ruling in both collins and thomas that's correct and it just the panel understands every single one of the arguments that these defendants are making here eight was not a dupont product doesn't mean that it wasn't a dupont white lead carbon i didn't say were in general and thomas of the argument that a defendant could be liable for paint jury heard that was different than what was actually before the thomas court and they have invented a distinction between lead paint and lead pigment that simply does not they speak definitely to this and in the thomas court with the defendants here tried to do is they tried to say hey it's not us it's the paint manufacturers the paint manufacturers are the ones who are liable and what the thomas court sa itself prior to its inclusion in pain and it determined that actually it was it's not the heat the poisons the child it's the white like carbon it specifically that's in the paint and that's exactly precisely with the good boy or bird and determine that how would i mean in the dory court statement that we have not however applied the risk contribution theory to residential paint pigment knew that that white light carbon it made it to the walls of holes in paint and what they said is a design defect claim because the only issue before the good or a court was would be proceed on the design defect claim vehicle that happens to be used to get the white blood carbonate on the walls so dizzy doesn't matter to the here you have this very toxic substance and it's toxic all the way through and it winds up in the walls and the vehicle doesn't matter somebody could have taken the paste and wiped it on there are mixed it up or somebody put it in pain or somebody could have just crumbled in the house not that they would likely do that is that fair that is they reject the pigment manufacturer's argument that it's the paint manufacturers are small and they say the paint and you factures actually deluded the white lead carpets toxicity in other words the inherent dangerousness of the white led carbon it pigment existed the moment that he meant manufacturers predated it and thomas identified and exactly what you're speaking of judge wood which is the idea that the vehicle or the i'm going to call it the delivery device the delivery device isn't what makes white light carbon it wasn't us white led carbon it simply is poisonous and the defendants had an intentional you i just want to get the benefit of your time with us today so i ask you a separate question and maybe you can direct me to mr baker fine asking in the wrong person and that is do you believe when you when you went to trial on your negligence claims that you had to prove some form of a product defect absolutely that that is a question for me an absolutely not and the duty of ordinary care which is the duty that we proceeded on has been well recognized and again you need look no further than the collins court and the collins decision which was the st risk contribution and at page fifty one dollars of the cowards decision it identified that there collins was proceeding on a duty of care so that specifically on a negligence theory the plaintiff must prove that the defended drug company had a duty of care and breached the duty of care when it produced a mark of the d e a s and indeed collins and no carcinoma suffered that stands in stark contrast to the facts here were each of these defendants knew or should have known about the dangers of white lead prior to even the time they were manufactured and manufacturers by now saying for a product manufacturer you have to meet both the elements of strict liability before you can bring a negligence claim and a negligence claim negligence elements before you bring in strict liability strict liability require sue to prove a defect that makes the product and recently dangerous warden hold very specifically that you do not under a negligence claim in wisconsin have to prove that any product under reasonably dangerous or for preceding on a negligence plain so it stands very specifically for the idea that this concept of a defective product as it's defined by strict liability law in this thomson at the strict liability claim and whether under the strict liability claim that there was any way for and the plaintiffs to allege a design defect saying that was the only thing that was looking at the concepts of decision that the only d thing that they were doing was relaxing because they should stand it in this way plaintiffs do not have to prove which defendant actually manufactured the white light curve in it that was found on the during the relevant time period thomas identifies a duty that's what we proved here a recognized duty under wisconsin one and in fact the duty that the collins court relied on for the adoption of risk contribution entirety but the good boy court certainly was not presented with the issue of whether they should abandon a duty of care that was otherwise recognized in the work in this context because good dorie decision solely established precedent here and what i think becomes important is this issue of post manufacture marketing is really an evidentiary question it's not an to market products containing white lead car met after they had ceased production it's hard for me that in that instance it's hard for me to see that there are still occupying the role of pigment manufacturers and i understood you a while ago in your argument to be saying that since they were pigment manufacturers they their production was in their capacity as pigment manufacturers and the marketing was in their capacity as human manufacturers when they're not  manufactures anymore or why they still have that status well the thomas court specifically considered that as i directed a paragraph eighty nine where they're discussing a show in millions they recognize this continued marketing after you ceased production and i think that that the way to look at it is this thomas speaks to you if you're pigment manufacture you're in the pool and once you're in the pool the question becomes what l of evidence is relevant to establish your breach of duty certainly it's evidence of your production and certainly it's evidence of your marketing of white light carbon and in fact thomas at once sixty says that that continued marketing that marketing actually magnifies the risk and makes the risk from production even greater and so the question is did thomas create a paradigm where that the minute that you stopped making white light carbonate yourself in your factory but you continued to sell it in the same bucket in the same way to the same consumers but you just have somebody else's white lead carton and that doesn't logically make sense that in one sphere you would be liable but if the others fear you would not now defendants want you to believe that this is an extension of risk contribution to lead paint manufacturers generally we are not advocating that and those are not the facts that are before the court there's no reason for this court to even concern itself with that because the reality is each of these defendants was rightfully in because each of these defendants was a pigment manufacture doesn't a warrant overturning the verdict because there is a plethora of complete it the vast majority of the evidence contrary to what mr julius said went to the defendant's production what they knew during that times of production what they were doing to market at that same time so the vast majority of the evidence still supports that jury's negligence determination and the jury's strict liability terms seems a stretch so this was a narrow band of evidence that was let in because it was the evidence about their product their the w we'll see being in other products which was pretty significant well but there's during the time that they were producing there's no doubt that their and inclusion of the w l c in their own page or somebody else's point home speaks clearly that is the basis for liability there is literally nothing different here than exactly what the thomas court heard the thomas court decided and the thomas court relied on in opposing risk contribution the only difference in the evidence that was heard at this court was the evidence that the defendants introduced this attempt to exculpate themselves from pate chemistry and i don't have the time to explain all of the  national lead and market share evidence the district court did not abuse its discretion intimidate or not admitting evidence of national lead and market share in phase one of the trial national lead evidence of market share evidence that absolutely absolutely no relevance to reporting the plaintiff's prima facia case and it has absolutely no relevance to the defendant defenses as we know collins and thomas explicitly adopted risk contribution theory and they laid out exactly how that trial supposed to proceed has two phases one is the liability phase and the nd phase is the apportion phase the central prac premise of risk contribution theory is to create a pool of defendants which can reasonably be assumed could have contributed in some way to plaintiffs injuries that is that they contribute to the risk of harm now the creation of this pool occurs during phase one it's a binary yes or no inquiry as to each individual defendant based upon that individual defendant's conduct is the defendant in the pool or isn't isn't it has nothing to do with any other pigment manufacture it's a singular in any consideration of that type of evidence is reserved to the nd phase where your portion whatever liability is found produced or marketed wiped the carpet during the relevant time period sure national lead might have the doesn't has the question about whether or not that particular defendant your armstrong manufactured or marketed  baker can you hear me no i don't think so lead can you point me to anything in the way of jury instructions or other evidence in the trial that would address the concern that the jury was just going to scapegoat the people in front of them and assume that they were the entire pool of defendants certainly the jury instructions your honor spoke specifically st of  jury verdict forms such as simply goes through defendant by defendant do they belong in the pool and so i think that's the answer to your honor if it does it simply doesn't matter whether or not national lead did or didn't do something that's for phase two and it's only for phase two your honor if and when the defendant's establish that national lead belongs in the cool as well so they must prove national labs liability to the plaintiff as well mr baker isn't it also the case i had this in mind during this exchange earlier that in the jury instructions while there wasn't it may not have been as express or as declarative as we've suggested the district court did say that in considering a claim against a defendant i'm looking at page six thousand eight hundred and fifty four of the trial transcript you must not consider evidence that minute against any other defendants or only as to other claims and then it made the point that american sign amid is no longer a defendant you shouldn't speculate as to why they're not before us so when you when you patch those two things together isn't the district court effectively saying just concern yourselves with the defendants that are here at trial that's correct your honor and more specifically when you get to the verdict simply hear relevant as to what national lead was or wasn't in face to face one and the perfect form specifically question three said did the defendant prove that it did not produce or market white like carpet but again it's a binary yes or no question focused on that specific defend established proposition a cause of action that has accrued is a vested property right you can't i mean there is actually supreme court lot of that effect you can't take away vested property rights without compensating them that baker is probably neither here nor there but i'm curious because of the wisconsin legislature's actions plural there are only so many of these cases that are going to be possible to bring under wisconsin law because district court just on hold waiting to see the outcome of this when they are public policy issue well this wasn't addressed by the defendants in their arguments i'd like to touch on a very briefly the defendant's argument that the plaintiffs verdicts should be set aside on public factors as well or diving deeper into those three reasons though i think it's important to keep in mind certain baseline propositions as they inform the public policy  analysis from all different directions st is that in thomas of wisconsin supreme court explicitly held that risk contribution applies to white lead carbonate cases that's not up for debate as a matter of public policy  otherwise how could this mr baker i didn't see apart from the more specific arguments that we're discussing such as public policy factors or discussions about the expert witnesses i didn't see any stand alone argument that the amounts of these three verdicts were so high as to require revision on that ground i know that was the one that had the richer for different reasons verdicts is this public policy fan dri theory that wisconsin is that's correct that they they attempt to set aside to obtain what what was constant supreme court calls an extraordinary remedy he said to decide these verdicts public policy grounds when again thomas is still good law these facts that occur in this case  in complete alignment with the facts in thomas this case basically is thomas with one exception and that exception is thomas they were simply allegations that the court was taking as true now they are attacks that were found fired the jury so this is actually in a stronger position so that that's your response to the argument that the posture of thomas was in summary judgment in all the facts are taken favorably that's correct and we've proven those facts and in making the public policy analysis this court is required to accept those jury findings on the specialist rocket now with respect to the public policy factors also it's important to recognize that this court is not writing on a blank slate that principle public policy issues to defend grass were also addressed and resolved in thomas were subsequently discussed and confirmed in gibson the substantive law with respect to these principal public policy issues has been decided principally the temporal issue that the defendant's right raise and secondly the quote fairness issue that the defendants raise the thomas court look at those considered them and rejected the defendant's arguments so on that basis there is no reason to engage in the extraordinary extraordinary remedy that the defendants seek the one can go through the foundry factors and i think we do that sufficiently in our papers but i think we need to recognize what really is going on here this is a facial attack on thomas the defendants are unhappy with thomas and so the simply trying to undo with facially not as applied because we've proven the facts that were alleged in thomas so they're taking a more frontal attack on it and there's no basis  to to revisit those public policy issues they've been decided if the court has no other questions as with the princip right i see not so thank you very much and we will turn back to mr smells like you have anything further thank you your honor two quick points on rebuttal st i'd like to address why the district court's error in expanding the risk contribution doctrine to paint manufacturers was indeed prejudicial the jury found arco atlantic richfield not negligence and not liable on a strict liability theory when arco stopped manufacturing white l would have treated us the same as our co and nd i'd like to address why this was an expansion of thomas and the best evidence that this is an expansion of thomas is what actually happened in thomas on remains what happened paint manufacturers in a risk contribution setting and that that distinctions that thomas draws that works and they show this very case shows that it works because the plaintiffs were able to manufacturers from paint manufacturers and treats them differently and that's further evidence that thomas does not apply to paint manufacturers so for all these reasons thomas coherently limits risk contribution doctrine to pigment manufacturers will make fungible white  that question in the light of companies that are putting those pigments in paints and transmitting  thomas didn't purport to try to dice up where along the chain what standards would apply or who would be liable for what in this case what what what judge they don't and that is the apply and the finished product because of the point you just made and mindful of the district court's ruling at summary judgment on negligent failure to warn that thomas i know i know misfits patrick you know argues to the contrary but your clients position is that thomas did not modify that aspect of wisconsin liability law thomas was focused on the causation element of a court to overrule tom's we are simply asking the court to permit the defendants to pursue the pathway that thomas created to allow manufacturers to prove that they are not liable to here because they did not actually cause the play decision it's in order to accomplish that we need to be able to present all relevant evidence to the jury including the fact that there were other please thank you all right thank you very much thanks to all counsel this is this is a big case but we appreciate the discussion and the court will take this case under advisement we will also take a brief