the class definition as of the class cutoff date of november st one thousand nine hundred and eighty six the answer to that question is yes which means that mr harris was not a class member and this court should the class description according to the florida supreme court was florida citizens and residents and their survivors who suffered presently suffer or who have died from diseases and medical conditions  here one of which is caused by cigarettes but doesn't meet the cutoff date one of which was not caused by cigarettes but does meet the cutoff date and so you've got this kind of fatal mismatch and just sort of as a matter of logic this person is not a class member box that i just put out there but the rub for you is what's the best explanation for how the florida supreme court handle her right to explanations for the st one is sort of a factual explanation concerning her case in the class members which is the florida supreme court did not consider addiction causation with respect to mr or any class member because that issue w not at issue as class members and the original angle claim case there was no addiction causation finding either way for any of the class representatives the only issue they're dealing with there was manifestation so there certainly wasn't what you have here which is an affirmative finding by the jury that the only disease that manifested prior to the hot off was not caused by fair reading of the florida supreme court decision at that point they were using those those terms synonymously but again irrespective of why or what she doesn't need for clues about that that's a good point your honor i do agree with that as well one case i did want to point out from our briefing in terms of future  six pursuant to that date order that date that told smokers you are not a member of the class and there's no need to extrude yourself if you're a smoker or former smoker who is not manifested or been diagnosed with any disease or medical condition caused by your addiction to cigarettes that is what the jury found as to mr harris as of that date he had not manifested it is these caused by addiction i do just want to take a minute to discuss remedy because we believe it's judgment in our favor whereas plaintiff says well we should be able to have a new trial that does not claims at the trial they said we can we can have stature and imitation tolling because of angle and we can have our conduct elements filled by preclusion from angle and so let us prove that in further and approving those causes of action we believe that under the jury's verdict plaintiff failed to prove the causes of action there's no ability for plaintiff to go back now and get a nd trial on the same causes of action if plaintiff thought she had two different theories or ways to succeed in this trial should have been pried tight in the complaint raised in the joint pretrial statement and either tried at that st trial or beforehand there should have been a motion under rule forty two to say we have two potential ways to win here we think we should try the angle claims st the angle theory of our causes of action st and then if we lose on that depending on how we lose we would ask the court to have a bifurcated trial of our nd theory which caused we're not saying that plaintiff can prevail on one disease to prove class membership if all of the elements are met as one disease and then and then recover damages for that later disease that happens all the time what is not happened before is you don't have a single disease that fills all criteria which i think is why i never tried to use the two thousand and twelve lung cancer to satisfy class good morning judge wilson and may to please the court my name is andrew cost and i represent the appellate mrs harris in this case your honors this is not an appeal from a class action certified under federal civil procedure twenty three by a federal district court where as the court is well familiar you a class definition must be objectively defined so that a person or as the defendant can read the class definition  in the class and who is not this is a unique creature of florida law it is not a class action it's a the class was decertified by the angle supreme court it became it although it originated as an opt out mr harris fits the class definition is florida residents who have suffered suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine mr harris meets every word of that class  date and as bush supreme court determined in chicago on the court quote imposed a cutoff date that was part of the broader principle recognized in chicago and that nothing that happened in the angle trial court is particularly relevant to the scope of what really was a cause of action created by before the supreme court an angle what's a concept is this court's angle decision is the pertinent point of reference for defining the scope of the angle class because unlike a typical class action the able class was quote closed by this court's angle decision unquote so interpreted the cutoff date and determining what must be shown as of a particular date which i think is really what judge newsome your question is going to because the reason the issue is one disease versus two is that one of our two diseases is after the cutoff date and one is before it's really a cutoff date question so interpret that cutoff date doesn't go back to notice or opt out or to the trial court it goes to angle and what the florida supreme court has said about angle in the four supreme court has never said that those two requirements must be met by a single disease because of the cutoff date and now i want to i wan go to mr michael's answers to the questions raised by you judge newsome and by judge anderson the florida courts have consistently determined and unlike the decisions relied on by mr michael these are this is the fota supreme court in chicago and has reaffirmed us that the best evidence of the often dispositive evidence of the meaning of angle is angles treatment of the class representatives now mr michael i have two answers to you judge knew someone he deemed factual and one presidential the factual answer was that the question of addiction causation was not at issue with respect to the class reps that's only sort of true i think it looks at it had a two narrow three is too narrow  what was decided in angle was that mr l evacuates judgment could stand because even though she had one disease that manifested by the cutoff date doesn't satisfy the cutoff date invented by the for the supreme court and she had a different disease for which causation was determined and causation was determined in response to judge anderson's i think very reasonable reading of angle that perhaps the triggering disease which met those condition tobacco related as found by the angle jury and so a prerequisite to bringing an angle claim a progeny claim is that you have to have a disease that was subject to the angle jury's initial fact finding and so if you if you search the opinion for tobacco related you'll see elsewhere it refers to the diseases presented to the angle jury most of which the jury found were caused by tobacco some they did not  think that's the best interpretation is that the compelled interpretation not necessarily but that's why you look to the class representatives i mean mr michael's argument to you judge and his son was that you do not read into the treatment of angie supreme court actually thought that della vecchia lung cancer both element i mean that you know that they go through this extended discussion of the date of manifestation and the date of diagnosis again sort of what's the point of that except the date the former i'm not sure i understand the question judge near sendai the basis of the intermediate appellate court's holding tossing the judgment from mr della vecchia was that her lung misunderstanding your question but if the if the proposition is that that the existence of these diseases are themselves evidence of lung cancer there's just nothing in the opinion to support that i do want to talk about but no to which that says that judge anderson i'm i'm not going to play doctor and and discuss whether c o p d companies lung cancer my understanding is there are distinct conditions but the point is there's nothing in the opinion some awareness of the connection between their symptoms and smoking in order to meet the kind of date the four stream court said well when we discussed the cutoff date with respect to mr della vecchia we didn't say anything about knowledge and so and so the overreliance not a footnote is wrong for two independent reasons one of which the district court was identified and one which it did not the one of the district what identified of course was that it just doesn't read like the basis of a of a decision it's in a footnote it's sort of a throw away it starts with the words we also note your honour's are no more about appellate writing than i do of course but that's not generally speaking how appellate courts articulate the bases for their decisions and it's a cone really backs up the district court on that point because it can chicago and relies on the end of the della vecchia determination to reach its own holding and it be a very strange thing to do if in fact it was this waiver determination as hinted at in footnote two but it goes a nd more fundamental point that i think must be recognized that footnote is not referring to what you necessarily think it is the defendant's absolutely contested missed della vecchia is judgment on this exact basis that her disease appeared in angle an angle supreme court argued the defendants had not objected to the inclusion of the class representatives until after the verdicts came in because of course before the verdicts came in the defendants had every incentive in the class thing as broad as possible and so again according to the plaintiffs the defendants seeking to bind as many as possible to a defense verdict never argued there was a cutoff date at all and so were a stop for making any such arguments against the class represent specifically now you don't need to decide who's right the angle trial record is that is is long and it's unnecessary for the court to go into it but the point is had the florida supreme court accepted that argument as the basis for  decision we'd have no cutoff date at all i think it be very strange for the court to impose against accounts words impose a cutoff date if there was a viable meritorious argument that tobacco was stopped from asserting a cutoff angle on the question of the remedy mr michael's argument for for how the cases from the district court is largely unsupported by citation we have point the court to the macaw case which actually  michael relies on in that case after holding that a surviving spouse herself was not an angle classroom very cannot rely on angle tolling the court went on to determine whether or not she nevertheless could proceed on her own statute of limitations finding on the fact there she couldn't but certainly not ruling out the possibility of that remedy  to talk briefly about what i think is really underlying mr michael's argument which are these values of notice and opt out as i started off with this is not an opt out class it was decertified it became an opt in class and it's sort of a strange argument for mr michael to make because under the class notice which he cites repeatedly if you include addiction causation as an element of class membership then how does anyone make an opt out choice it's not something that's reasonably ascertainable again it would never fly in a federal court class certification i think that all rule actually promotes values of notice and values of ascertain ability because it tells you exactly who's in the class and who's out if you have a qualifying disease and you file by the deadline you're in if not you're out and i think that's why the district court in chicago and help that notice and opt out considerations do not control the resolution of difficult questions about the scope of the angle cause of action and then mr michael's point about the two thousand and twelve lung cancer you know i think that it's the court obviously does not need to decide these to decide a case based on the record before the court not what might have been or what was in counsel's minds i just on seeking a causation finding as to the two thousand and twelve lung cancer it can be inherently difficult to convince a jury that it is a disease that was caused by smoking was caused by someone's addiction when the disease st manifested years after that person quit smoking and so respectfully judge new semi i may have stumbled over my words that is not what i think i said and what i was he had an angle qualifying disease manifest within the cutoff period and so in terms of how they all classes  defined it's restricted to diseases that the angle jury found were tobacco related so you can't just stroll into court with any disease it has to be one of those diseases and then and then he separately prove injury and death caused by his addiction  if the question is is there a single disease that meets every requirement as mr michael stated it no there is not but i don't believe he stated the requirements correctly florida supreme court decision says that a have to get to college just as close to reading as douglas and i think that on balance we the cases favor us but nd judge i think that pulling that language out of douglas just shows you how it doesn't answer the question because elsewhere in douglas there's other language suggesting that our position is right so if you there's a section of douglas and i can try to find the page number i don't have it written down in front of me where the supreme court was in court is is listing what addiction to smoking the angle defendants cigarettes containing the katyn with the legal cause of the injuries alleged and three damages and i'd submit that if you take that quote and just read it it says that mr harris proved everything you needed to prove that class over my time so with the court's indulgence i'll briefly expand on that he cites two cases primarily for that the alan case which says that addiction causation is an element of class membership you know that's been taken as a given by the federal courts because of course you don't need to side with that's right or wrong the point is it's not something the for the supreme court has ever adopted and nd he relies on the macall case and i would just point out that the macall case the language that mr michael blockquote that appellate pelleas blockquote in their brief i'm sorry  about that the appellant blocking their brief has actually been overruled by the for the supreme court in chicago and it talks about a cruel within the class period but the rule is that there's not that your cause of action needs to occur within the class period so that just shows you the danger of relying on snippets of language from decisions setting the parameter of the angle class based on both the description and the cutoff date and it's not they're not creating a new class they're saying if you're in the class already here's how you can continue to pursue your claims and that was you file your individual suit within a year just like a court might say if you're in the not cause some that disease or some disease that occurred later or any disease has to be the disease that was existing at the time of the class cut off and just as what is the point a class cut off if it does not cut off the class if you have a class and then something that happens after the cutoff date can bring new people into the class that's not