also speaking on behalf of the other appellants the defendants below the question before the court is this can a court start of five issues under rule twenty three c four for class treatment when that same court has already determined that the l's same common issues do not predominate over individualized issues an abaya ability only context and the answer is no here our district court rigorously analyzed the seven proposed specific common issues under rule twenty three b three to determine whether a liability only class of liability only class could be certified the court as it should  a subset of the issues that the court considered in its full review of predominance judge the answer is no in the judge's opinion he lays out seven specific forbade him issues that he analyzed under rule twenty three b three and then he takes the exact precise forbade him seven issues and says oh well even though i didn't find predominance i'm going to go ahead and under the separate rubric twenty three c four i can just do this predominate sounds like there's one group that rules over the other that's what predominate means right correct like domination you've got to have a dominator in a dominant c you know of course of course so if you undertake one inquiry and you see that one group predominates over the other that doesn't mean that if you have a new can construct where the items that are being predominate over in a longer present you wouldn't have predominate that's the analysis but that's not what happened here in this case i understand that in a theoretical sense and there's lots of there's a lot written on this issue where people talk about can you use you just seem to be saying that because there was one predominate and it controlled the second one but the second one is a different inquiry that's what i'm asking the the answer that is judge i disagree with that respectfully it's the exact same inquiry he already did the same inquiry he would do under c four as he did under the b three there's no change both or liability only with a narrow already pared down the case started with eleven causes of actions they held six or seven to the side i understand that they pulled damages out when their they couldn't proceed with class why damages they pulled damages out it gets pared down further and then they present only on liability only issues five causes of action i believe it's five and so they've already pared it down so they just because you've already pared something down doesn't mean you can pare down more understood if you look at judge rice part of the c four opinion you won't see at least i don't see how he's comparing it to anything different than what he did last time he would still be there has to be or are i say sounds like he can do it right it says that an action may be broader maintained as a class action with respect to particular issues why is that not the end of the ball game it can't be the end of the ball game because every circuit court that's in ally's this issue has held that you have to view test and your opponents suggest i want the broad view to yes i disagree with that judge in the randleman case this this circuit held you didn't need to enter the fray between the circuit split and in our case respectfully you don't need to enter the fray either here and decide near or broad in this case this case because of the this particular pinion and the analysis of the subset the judge rice has already thoroughly we disagree with that analysis and if we do then what is your position i disagree with we disagree that this was that this was not a further delineation of issues that are appropriate as an issue so let's say that he has done so what is your argument as to why he cannot he cannot do that in this case is it completely do you place your whole reliance in rest our whole grounds for reversal in toto with with the relief being that the class that the case proceed with no class process individual cases on the point you made the to the fall back position is that the case should at a minimum at a minimum be remanded so judge rice can set out so we don't have this discussion we're having and kind of be wondering did he or did he not analyze in opposition he clearly isn't the record adequate for this court to make that analysis why is it not and why is it not adequate for these because there's an analysis because there's no indication whatsoever of how this would be superior and in fact it wouldn't be superior to judge x pressley said i'm not even analyzing superiority every circuit court this analyze the split on both sides of the split both sides of the split that said there has to be a shell when it has to be presented past the predominance issue just putting that aside for the moment and moving over disappearing or what i'm saying that there's two arguments in response to judge strangers question which is that if you accept our predominates argument should be revers lot right if you accept the superiority argument it would be a remand with further proceedings for the so the court can do what's required of a district court to set forth this a period already and what i'm saying is in this case i don't see how you could ever do that but and but he hasn't done it so we don't know his introduction into the analysis of the individual seven class issues that discussed why it was appropriate to have this kind of provision you think i inadequate because it did not use the word superiority i don't think it's in how you could because he didn't use the word superiority that that would be putting too much power into a specific word but i think it's an adequate because it is inadequate in the sense of it has no depth it has no meat it was never addressed he said expressly he's not addressing superiority in any context that that hasn't even been analyzed by the parties the plaintiffs who carried the burden on this issue of course didn't present a trial brief nothing has been analyzed even in that and so no he came up with two sentences just kind of i think sort of this is why i would do this but that's not analyzing superiority in a way that from my read of the cases passing us toxic tort super fun kind of case where you got what five hundred forty separate parcels and why would it be in to your client's advantage to litigate some of these seven common issues five hundred forty times as opposed to a class action approach to the won't one because the proposed approach the order to proceed by judge rice doesn't comport with rule twenty three and it would also violate their seventh amendment and the reexamination clause you can't do what he proposed in this context that's the whole reason it's not that it quickly explained you can't do what he proposed because  explained in his big three analysis injury in fact is part of liability and so you have causation and i understand some cases have said oh we can wait on causation i get that particularly in the whirlpool which is no pun intended a clean case one defended one issue the young case one defended one issue it's narrow a cohesive class those opinions make sense to do this this case your honor it is very very different there's three different defendants two of them in the same facility at different time periods the question of when you were negligent how you were negligent where your contaminants went wow like why are all of those issues resolvable as an initial issues and then the question of of liability or the question of harm is separate why would you want to judge gilman has asked five hundred forty cases that have to present extensive expert testimony which is exactly what these cases are based on about the location of the plug on the testing of the homes  is viper under strut under the strata why aren't those all preliminary questions that can be resolved and save this court and the district court and amid some amount of time the first answer is i believe respectfully that's what judge rice has already analyzed and determined that you can't i think the mistake here of law the abuse of discretion is the judge rice mistakenly believes that he can no individual cases because the cost of such cases means that there be no litigation whatsoever this case is out of if not a question about whether there be class action or five hundred forty individual actions the damages are such according to our experts  five hundred forty parcels as joe if you pointed out each one of which are estimated to be worth forty nine thousand dollars the damages to those parcels the the property damage to the value of those parts is approximately twenty thousand dollars or her original brings the case in wins on quiet on the certified to be on the seven issues the court below certified as common issues if those issues are not litigated because it's too expensive but if they're if they're on class actions which said if you have no predominance it's impossible to have security and the and but they they fail to pick up the very next sentence which said conversely if you have predominance it's hard to certainly have the right to send it back right i'm sorry i mean what i meant to say was of course it could be sent back but the purpose to be served would be rather i think would rather minimal the court would turn around and say as courts before have said if because there's only predominate issues picking up on what the eleventh circuit said and what the street is we did there for find that it's impossible to imagine that it would not be a superior form of action the defendants already conceded if there were only one issue out of hundreds would it still be severe and it and if you looked at that issue only it would predominate because there would be any other issues to compare it to is that automatically know there is it that's not a superior way to do it even though if you only look at that one issue it predominates because there's nothing for it not to predominate over your right you are you would not that would not be a efficient use of judicial resources don't we have to have an evaluation of that kind of inquiry under the superiority analysis from the district court first under the circumstances in this case you are the court is a ready determined that there are seven there are so we can determine there are seven issues that predominate and you roughly correct when you on your initial comment when there are only common issues and there are no individual issues those seven common issues automatically predominate that's what every i was asking if that was the case i was saying ok if you assume that's the case  you just said that doesn't answer the superiority in free why do i gave you an example where that was the case and you said there would not be superior that's the problem deal your hypothetical essential it was just a small issue you would say at least arguably that it wasn't superior even though predominated if you only look at that one issue it is a house it's there's predominate issues there were essentially issues they can then you want to even though they predominate in the esoteric center in the formalistic sense that they predominate over something that isn't even there you still have a question of whether they're superior even though they predominate and it's all i'm asking so i you agree that there's a superiority that there can be lack of superiority even though there is predominance which i think you've now agreed to then you have to argue something more than predominance in order to demonstrate in the context of this case your honor i do think it's in the context of the seven issues that had been in that context have been something found by the district court you say the context and give me some other because there's no argument that arias it needs no court because as far as we've been able to determine your don't need to make this separate finding of superiority we haven't found it even though that's your position even though your position is also the predominance does not necessarily require superiority in the kid in a case like this one what is it about this one  different well it's because because it's seven instead of one because there's no yes because it is seven versus one it's seven versus nothing there are no other on mean because it's one it's seven issues the predominate over nothing versus one issue that predominates over nothing requirements that's true but they're wrong in the next step where they say that every court has held that applying that rigorous analysis you must also makes a separate finding about that that's just not the only that are not even specifically addressed c four have essentially recognized the logic of that position including both the public court which they criticize judge posner's decision in butler which they criticized because it doesn't mention c four and frankly this court's cases it isn't even the broad merely change of timing on the determination of predominance because because when you're in c for it it becomes there is still a predominant analysis under sea for is that not correct even under the broad feed your honor it was correct i think in some circuits it still may be correct that was the initial to doing that which is why we cited the obvious case from the ninth circuit and the share own case from the second circuit of two thousand and thirteen and the two thousand fifteen case are to be two thousand fifteen thousand thirteen cases respectively both of which if we can dispense with the three predominant analysis altogether even if even if you don't have the salish predominance of the b three you can proceed with before without having to go back and determine whether there's whether that predominates as well those case because there's no sense in doing that that's the same sense of going back and saying can you really determine whether seven individual cases of liability are seven individual issues common issues minus zero really equals of a predominance there's no sense in doing turning quickly to the jury question which i think is important defendants point out that there are two possibilities there seventh and that rights are implicated by the fact that the district court suggested that if the individual trials most of the courts for every circuit i looked at in that we cited that said of course you could have a special that or it's contemplated the rules but even if you don't have a special master and you go you decide to go with individual trials the be this the critical question is not whether there are some evidence three points that are common to both the class action and the individual cases with the first jury that discusses liability and the common issues and the subsequent individual proximate cause injury in fact and damages the the ball is not whether this evidence it's whether the same issues are being litigated and if you look at what judge rice did he very carefully wrote the seven common issues in such a fashion that they cannot possibly implicate individual damages they're written in such a fashion i can read them to you but essentially they isn't that part of the analysis that would be covered b already i'm struggling with this because it seems to me that that judge rice was addressing methodology and functionality when he says here's what i'm to do i'm going to put seven issues day on and those seven issues hover over the individual issues applying to each but not necessarily dispositive  overarching quietus predominates in the key underlying issues and then i'm going to take up those seven issues in this predominance and then we're going to work through a special master methodology to resolve the final issues of liability well of damages actually yes he said there was a possibility he didn't definitively say he was going to do that b said he was inclined to do that if ok thank you for i realize i didn't really respond to one of your questions judge gilman i apologize for that you asked why would the defendants prefer why are we one and to do it with individual cases in the answer is twofold one because this is not the case like whirlpool or young or many other cases where they have correctly and wisely and prudently held that a c four class is appropriate this one is not so it's repugnant to rule twenty three period the second but the second have really struggle with that how can it be repugnant to the concept of a class action for people who have been harmed in effectively the same way an environmental pollutant who all live in a neighborhood that is heavily poor and heavily right surely it is a heavy racial demographic and the key issue in resolving whether their property can be protected or whether there is a remedy for these individuals is whether they can bring either about a client's a large group without the capacity to individually litigate the kind of expert cases that expertise that is required and so they combine together it enables them to have the major issues litigated so that there can be an understanding of how their property was damaged and the court can do it in one broader fail swoop and then those issues can be resolved it seems to me that is the essence of why class actions were created respect for your honor in this particular case and in many cases class actions are the right way to proceed i've been on the player side as lawyer in for class action they that they have their place they have the rule but the reason there's this rubric of theirs the reason that there are so many cases is because not every case turns out to be more efficient for the plaintiffs for the defendants and for the courts  is this one not more efficient you guys have been litigating for ten years ten years and there has been you know there has been fights over discovery and  you opposed opening back up the steps and so we're ten years into this could one of those a lot worse that forty thousand dollar watt have litigated this for ten years i is yes they could because the plaintiffs had twenty or thirty people signed up so collectively they could do what i was going to propose with the efficiency purposes if we ever got to the point upon remained i suppose of analyzing superiority we would look at this but in this case it would be better to do these cases with some bellwether cases and the reason that several six or eight bellwether trials it's going to be difficult either way i think we can all admit that it just the complicated propose that to the court the pl in throughout these ten years we would like to do that you know that is do you propose bellwether litigation to the court below during the ten years of this litigation because the plan of care now not because  did you not honestly judge can't remember if we did or didn't if we would have it would have been in an informal conversation we didn't in any formal papers there was no trial briefs submitted and therefore no we didn't respond in the trial so the issue has no recommendation to the court that this is one way to proceed on these cases again i don't want to say something is not accurate i don't remember if we did or didn't know we've had discussions but i can't remember if those were only with opposing counsel or with the court so i  agreed to that with opposing counsel to do bellweather case now whether i know that we can agree have you made the offer to opposing counsel to do bill whether cases i'm happy to now we're not naive have you already in the ten years that you have litigated made that offer the short answer is your honor i know we have discussed it they haven't seemed interested as i recall i don't remember the specific conversation and i apologize for that i know it has come up i know we've kicked it around but i don't know whether it was a an offer in that sense because i don't think we got there and i don't want to say something that misleads and i just can't remember i know we've had the discussions and i apologize over the ten years i just don't remember the specifics but i can just tell you that in looking at this case if we fully that the issues including the issue the of the what the judge raised as common issue number seven which is negligence in the timing of the remediation you that has a temp that is an activity that could be undertaken without regard to who has been affected by it could it not i disagree your honor is because the question of remediate the timing of remediation thank you for asking the timing of remediation if hypothetically if a company spills chemicals here and a person lives right next to the the the negligence the time in the thames moral factor in how fast you did the remediation as to this person would you probably better do it pretty fast because if the contaminants are moving towards  person's house and he's close by there's a temporal thing as to whether you're negligent if you took three days that might be a problem if there are two on that person's property but this plume has people a mile away and so when you have people a mile away  question of whether if you just for example hypothetically took three days in might be in negligence or you could argue a problem is this property owner but the one who's a mile away it's really address that just and i'm struggling with that answer because if the question is whether you investigated and remade the defendants could have started wherever they pleased and just done remediation on where the problems lie and that's what issue seven is asking about did you undertake anything are you asking did they do it for mediated they do know i am asking is that not an overarching question did you undertake it and or you're not and that's the answer it doesn't that we aren't yet to the damages issue and i'm here at whether you did anything about what the problem was the time in which you do or remediation is the is how you're negligent if you did a great