three principal reasons first the insurance policies expressly state that quote no person or organization isn't insured with respect to the conduct of any joint venture and it has been undisputed from day one to today that all of the underlying liability originated from the chinese joint venture in the conduct of that joint venture second as a district court express we found the parties did not intend  portfolio companies like s p l would be covered by the policy capital did not intend to purchase insurance for s p l or its portfolio companies travellers didn't intend to provide that insurance so it it's clear it's undisputed there is no intent  language of the contract is very broad it says any liability with respect to the conduct of the job of a joint venture and this court may know in courts have said that the language with respect to is extraordinarily broad even broader than arising out of and this court in the beretta case judge will consent actually talking about arising out of that that's in maryland particularly broad i'm going to i will probably a number of questions there not leading questions and not trick questions i just found this to be very complex so just assumes that i'm seeking information as i read it the joint venture  joint venture exclusion with respect to and indemnification is not in front of us but it at least with respect to coverage once it has been determined that the problem as you see it if i am if i'm understanding correctly is that the district court said yes i recognize that the j t e exclusion bars travel is duty to defend wouldn't it has been determined that the source of the litigation is c z s p l sourced and all sourced contaminated but we do not know that at the outset because at the outset it was not clear that all of the contaminated heparin was sure through c z s p l there was some question about whether it was also sourced through wisconsin is that correct yes that's where the district court invoked the potentiality who because some of the lawsuits were silent with respect to where it was sourced most of them did  as to the source of the happer and if it is nevertheless it nevertheless invokes travelers duty to defeat and because of the potential of coverage disregard found that if it's unclear as to some of the complaints if it's if it's silent on this to some of the complaints then the core hell there's potentiality for all of the cases even where it was clear in the cases ok thank you that was what the next part of my question because i got a little confused between getting to the point where i don't one of the things i don't understand and i will ask your colleagues on the other side as well when did it this is this is in our in our briefs but i can give you the record cites they indicated that their theory this was the consolidate cases it was heparin from china july two thousand and eight so this before in american capital has made any sort of insurance claim in and then in the jump ahead a little bit but in the january sixteenth two thousand and nine letter from travelers to american capital denying  fan and covered it said this was all from a joint venture asked american capital for additional information if they had it wrong american capital not then not any time after not today never denied that all the it was from from china but there's also in the record and two others were potentially from germany but they knew and when this is in the record that by two thousand and eight september that those lots had been captured by the recall and object to the district court conclusion that travelers would be liable if there were if there were a question as to whether insured it indicates that they're the someone is not an insurer that extremes of evidence can be taken into account we've cited the lowell case from the maryland course special peals the baltimore gas and electric case the springer case says that if it's not an issue that's going to be a dispute in a lawsuit then it can be consider it but but your honor if the court at a bare minimum as of september two thousand and ten in the court records in the ten but the district court allowed them to get damages well beyond five years forward after that after the records in all the suits showed this was from the joint venture that's one of the fundamental errors here in not was just a bit too drastic we said to remedies are out first on the dance there's the there are two issues on the on the the rescission but also the other remedy is just allocation of the damages so here the all the maryland courts say it's the burden of the party seeking fees and damages to give a reasonable basis for damages much less complicated cases than this an expert to explain which damage which fees were necessary quite understand that yes well i'll start to describe it and then you can ask me any question that hits you so the parties under the agreement the insurance policy any voluntary payment or voluntary obligation quote a loophole then there came up with this agreement that somehow purports to put travellers on the hook for a third party baxter's defense costs without any explanation without any evidence without any testimony from an expert from a lawyer or anyone explaining how that could possibly be and it's complete and it's completely inconsistent with the insurance agreements which only covered certain parties american capital even if s baxter health care is not covered under these policies and so the damages issues that's the fundamental question that we've raised and it was the burden of the point different in judge lloyd that it really you know it's like a  damages case they didn't put an expert on normally in a few you'll see in the marilyn cases we say well much simpler cases you put an expert on the expert descriptors twelve factor test in maryland about when the fees were necessary and the that because there was m t l the court could just assume that all the fees would have been expended by american capital because all the cases were together and there's just no evidence of that and if i can give you an example anybody then the case is all focused on these are the biggest expenses in fees the they focused on the individual injuries to the plaintiffs which were not common to all the cases yet travelers is being required to pay ba and there's just there's no factual support for that you know there's no testimony you'll note that there's no cite to any evidence there was no lawyer from kirkland and ellis who tried to handle the cases the lawyers who handled it someone else about the agreement testified  continental casualty case and the other cases we've cited so you have to look to find covered if it's a covered suit and a covered in shirt here we have uncovered suits and third parties baxter can handle itself in terms of its insurance its it and i you know i don't want to go too far but that agreement in american capital once they had the agreement it sort of laid down as we played out in our briefs instead of filing motions to dismiss it just stayed in the cases and told the judge don't honors i'm john schreiber if you please the court i was trial counsel for american capital of the long trial and so after american capital purchased a products liability policy in traveler's promise to defense against all l it was clear after we got to all the other underlying cases were completed which was before two thousand and seven two obviously suits were being filed right through after two thousand of them not all of the some of it a lot of them they were and some of them they want and i thought it was a lot earlier than two thousand and seventy two thousand and seventy again i can go back and look at the record there are suits that are coming in from it so it doesn't matter for purposes of my question when the suits were coming in the question is at what point was it clear that the liability was c z s p l and not some other source it would have been after well it could not have been clear other than by looking at each individual plaintiff right which you couldn't do into all of the suits were in or or it had been resolved think got the district court set and recognized that the j the joint venture exclusion bars travelers duty to depend on any theory of liability where the suit was question i'm really not i'm really not arguing with yeah i did that as the district court recognized the joint venture exclusion do bar travelers duty to defend some of the suit and it is not it doesn't have a duty to defend what are the s clearly wasn't based on c c s p l sourced contaminated happened because c c s p l was the joint venture that was excluded by the expressed terms of the policy twenty four in the summary judgment opinion the court said there be no duty to do so and where there is no potential for the complaints alleged conduct separate from the joint venture and of course there were multiple claims in all of these suits and their common claim in all of these suits was conduct separate from the joint venture and shang it's very important to note that it page three of the summary judgment opinion what other choice there was defined as a joint venture of which s p l was a member and i heard mr boutros said s p l had a joint venture s p l was never a member of the joint venture and the court clarified summary judgment opinion right before trial and this is at appendix two zero one two she said court clarified that the duty to defend is not turned on quote whether there is any j v heparin involved and travellers took a different position in front of the court at that time in its brief which can be founded two zero zero three in the joint appendix that said the summary judgment opinion before it was clarified even then did not hold the j v involvement without more would trigger the clause even if that were a feature of every case and the reason for that is that the very construct of this joint venture statement that the court is making is travellers represented to the court that s p l was a member of the joint venture and that all of this conduct that occurs after the joint venture it passes through the joint venture is mitigation of s p l's own conduct as a joint venture ert and therefore isn't independently actionable but all of these all i'm trying to respond to the now joint venture question but i want to do it in reference to how the court defined sean's out in making any statement about sourced from because that would make the conduct according to the courts which is a do novo issue it cannot be interpreted to refer to some causal link between a third party joint venture and american capital which isn't a member or s p o which isn't  proceeds were certain to baxter that's correct ok and why would travelers or charter be liable for that for anything to do with baxter which was not a party it help me understand travelers responsibility with respect to baxter ok this goes back to what judge floyd pointed out was the inextricable intertwined meant of all of these cases cases were not build on a suit by suit basis they were built on a service by service basis and in the trice giri case this court entire oh yes there is much information in front of the district court that would allow for they had all of the various underlying complaints they have the johanson judgment which establishes what that be again why would that at least not be a double recovery and not reasonably paid by truck by travelers the the amounts that were pledged by in american capital was compensation for a financing arrangement just as if you went to a bank this was the consideration proceeds insurance proceeds was something that had value to baxter and that was something because they were cash poor that they could pledge to baxter in order for baxter to finance the bills as they came in that were incurred after the denial of coverage for s p l and american capital and seemed to not be travelers responsibility well i don't doubt that it had value but that's rather beside the point is farce my question and trying to understand why there's other insurance coverage here s p l head insurance coverage american capital and baxter under a joint defense which was never which involved be the exceptions of an obligation which was a breach of the insurance contract for any amount that you incurred in order to enter into that contract but the law is very clear the bakers express case and the charade brandes case upon which the district court relied in its two thousand and sixteen opinion that a pre dinner nial agreement for the payment of future legal fees cannot forfeit post agreement defense coverage where the later denial of coverage is based on the underlying complaints which of course travellers received before this agreement was entered into and so sure would brand says the denial relates back to when the original complaints were were noticed in the c s a therefore doesn't prevent travelers from defending travellers refusal to descend is based on circumstances long predating this which is the allegations of the complaint if they had answered if they'd given their position right away they would have said there's no coverage and then agreement would be entered into but there is no forfeiture of later occurring ok so your honor there is an insuring clause in this contract which is for insured contracts between an insurer and its indemnity that predate the injuries and that is exactly what existed under the and baxter to enter into if they can get a conflict waived into a unified defense because that will save everyone money and it's under the supplementary payments clause and so the  also say coverage is provided so long as there is no other extra insurance available to that organization and there was no other insurance that could take priority over the primary policy that's not over time but because the insurance of travelers is under the excess clause in the travelers policy travelers coverage comes first there's a pecking order and at that point the s p l policy is treated as issue s p l again s p l is not the j v and it doesn't have a j v and i think that's very important because all of this relates to the notion the assumption the traveller's argued on summary judgment that the reason that this clause applause is because s p l is a member of the joint venture of that was not true and that the joint venture was the active participant in the supply chain to contaminate the product and if that had been true and it was not true the courts found not to be true in addition to finding that this was not as peals joint venture if that had been true then one's own subsequent failure to mitigate one's own misconduct would not have been separate conduct but now it comes out that s p l and determined to trial and also admitted before trial that s p l was not a member of the joint venture we are talking totally about third party conduct and i think it's very important to note that this clause cannot be looked upon as a clause that is a liability causation clause and the reason for that is i don't have any other questions  member or that they that's not the argument the cause it issue which council didn't mention now they don't even quote the joint venture clause it says no one isn't insured with respect to conduct of a joint the conduct of a joint vent venture that's the end of the story and judge talking with your question again the timing counsel jumped around a bit there but on pages thirteen of our opening brief in eighteen and nineteen we walk through the undisputed timeline indeed you're on the to the this the summary of all the record cites page thirteen an n p ages eighteen nineteen of a brief but in the record your honor if you look at the discovery responses or at j a twenty four ninety three thirty three ninety three through thirty four nineteen thirty four twenty three twenty one those are the documents that confirm that those two german lots were not they were recalled and then also in february two thousand and nine  the discovery responses there j forty one thirty nine to forty one in forty one forty two through forty nine and then one more s p l told the f d a in september two thousand and eight that the german lots had had been recalled before they were administered that's it twenty seven ninety five three twenty eight zero five so it's absolutely clear and council says well more lawsuits could have come in well if a lawsuit came in and it indicated that there was a source other than the joint venture then a duty to defend ma'am arisen under those circumstances you can't just lump them all together and that just on vax tr council it's not just the reimbursement of insurance proceeds baxter's lawyers were given control without travelers consent i mean law firms would love this if if their clients were to say we're going to have a third party pay we're just going to dump the the the the be billing documents capital i would have been in a joint defense group and it would have been vastly less ok i think the question is if i had this quest also they have put this before the district court surely you have some obligation rebut that by saying specifically whatever now i would like to be able to have kirkland and ellis represented too and i can understand perhaps or chafing a bit traveller's stood on the fact that the plea that they had not met their burden so and i do want to make clear that's not our our main argument is picking through these this is a much bigger problem baxter was not insured these are mainly baxter's  to do and ended the baltimore gas and electric case makes clear that once it becomes clear even if there was a d d defense that's the cut off so fees up to two thousand and ten only with respect to covered party so baxter's fees would have to be excluded and with respect to the suits that even even giving them the silent suits only the fees on those suits it was and judge king it was the i know this i'm sorry a broken record but it was the plaintiff's bur say there's a you know his multi factor test the the patient's first case which is one of the maryland court of appeals most recent case says that there has to be at least some evidentiary basis to give the court a predicate for making a determination and i go were deductions made there was no testimony from anyone that those fees were reasonable and and my key point here is there was no testimony that from anybody that those fees related to american capital and in s p l seconds that provision explicitly require all sorts of consent from travelers which was never sought thank you very much  the court to point out that when you asked mr boutros about this co evidence that was admitted in the in the coverage action regarding the timing of the discussion regarding where the source heparin came from he gave you some citations the record citations he gave you were two documents that were not emitted into evidence in the coverage proceeding and they are thirty three eighty three and thirty four twenty two fifty three so they were not part of the trial record if there's any questions the court has here to answer them