this despite the fact that there is can dispute of it's i just feel that most of the plaintiff's damages that she claims are ongoing and in effect her life happened after the exacerbation of the neck injury so the  that standing exists in the absence of a quite for contribution i'm i think that it does your honor because it if you don't have that the plaintiff is paid and in fact they were entitle to a set off for the amount that the other party paid in that case but they still needed to pay over their program share the company contribution play really affects the pro rata share doesn't affect the se up over again henry they were allowed to receive only what they were awarded at trial and if one party didn't pay the ninety three percent that they needed to they can still go after the other  to make themselves whole but that doesn't mean that they get to go over the amount that they were awarded at trial and in here if there are if there is a proper sell off if that actually if there under this case the contribution is really a red herring it's really going back to sod off and we actually drew a pretty dress up in their briefs well what we're saying is not that the circuit to the circuit court needs to assess liability percentages for all of the defendants we've never made that argument we're not making that argument now what they need to do with those with those certain court needs to do is they need to look at the subtly part they need to look at the liability they have they need to look at the damages that the plaintiff house and then they need to allocate to the proper time periods for that one supplement so if the bulk of the damages  after august nd two thousand and fourteen and they are liable for those damages or potentially liable for the same just and if that's what they're settle then they need to put the proper percentage of that settlement agreement attributable the allocation in this case and thus the the whole settlement is not in the face with regard to the allocation not the amount but the allocation of the level of the injury changed as a result of the liable for injuries caused by r f a procedure and as it is well settled law that original tortfeasor is liable for injuries caused by foreseeable treatment that aggravates the injury proximately caused by you wouldn't say that that's an aberration of the original injury simply because she was she would have been there for the treatment but you are absolutely correct about that you're absolutely correct and i agree with the the  problem that we have here though is that there's really no finding of fact to that to that the fact the plaintiff has argued that there are absolutely did the whole reason that even brought the us into the case is because they knew they could be liable for the the the the parts of the hour of a procedure they also said all that part of the case if they didn't believe they had any liability then they should have cut it off and not assessed anything to the it so now argue that over there they're not connected at all so the allegation is that is is fair and reasonable is really a manipulation there they're completely reversing course of your entire argument for the whole case to try to support  in its brief that this court should dismiss the appeal because consolidation has no practical fact in any reversal of the good they violate does not provide any claims in the two thousand and thirteen case however the apportion issue your honour's is a material term of the settlement if that's determined to be in bad faith if the court determines that it should be remanded for differ now cation that affects the settlement and requires which case this matter the motor vehicle accident and the equitable portion of claims are still pending until such time there is a reallocation and it is found in good faith by the trial court if during that process the settlement falls through for some reason that there is no reallocation or the allocation is not found in good faith and a good both claims are still pending and consolidation is still that issue consolidation is proper when cases are of the same nature arise from the same act or event involve the same or light issues and depend largely upon the same evidence it is not required however the two cases are multiple cases the pending claims in this two thousand and thirteen case pursues me the actual horsemen claim and the medical negligence claim are the same regardless of the different theories and negligence of the different theories of negligence  the different parties they are both of the same nature the equitable portion a claim and the medical negligence claim alleging medical negligence by doctor showed a tear in performing the august twenty two two thousand and fourteen radio frequency of elation procedure that's the same event that issued the same act that event that issue in both of these cases that procedure that's the impetus for both of these crimes both of these claims involve white issues and will depend on the same evidence at trial the same facts here issue both of these claims of medical negligence an equitable portion of claims alleged medical negligence in which case the parties have to prove what the proper standard of care is the alleged principal liable for doctor showed his actions in performing that procedure you have an institutional negatives claim is against the hospital here that seeks to hold again the hospital liable for d a good conversation i was having with most was all about what were the injuries in this case when you're saying they're the same i'm only addressing the injuries alleged by medical negligence as in the equitable portion of claim alleging medical negligence in damages and the medical negligence claim alleging damages related to that those are the damages are addressed and those are the same so without consolidating these two cases then the defendants here were forced to involve a life same issues in the same evidence a trial with the ultimate risk here of late of obtaining a double recovery and inconsistent verdicts if these two cases were good were to go to trial so for those reasons we believe it was for the trial court to not consolidate these cases if your honour's have no questions for me  over this three year period of time is minor accident the injuries that are still being claimed that lead to the radio frequency ablation procedure in two thousand and fourteen are still costly connected to this minor traffic consideration the court can make when determining the allocation or whether this is a good sample and if you were to believe or if a jury were to believe dr fletcher then dr counsel did not offer either offer any testimony that there is a medical basis of medical opinion because that's what the jury has to have a medical opinion establishing a causal relationship to two thousand and eleven in two follow the recipe a path we made in actual allocation recognizing the proud the ability of the sterilization the causal connection opinion up to two thousand and fourteen was tenuous  action the contribution claim was discharged by a good faith finding a good faith fight it is not necessary for our agreement to resolve the case fact if you read the settlement agreement there is no contingency or term in the settlement agreement that makes it depended upon good faith finding the proof so it's a divisor e determination it vies or e to inform the set off the may happen in the subsequent medical malpractise case whether that can be collaterally attack there or whether it is right post verdict in determining what to set off is not my issue to deal with so i doubt that's probably where some folks may determine that question is resolved i want to comment that it wasn't the it has not been a reversal of course for a d m at any point in time in this case they did have some responsibility for that medical malpractise we file an equitable portion claim as opposed to a plain sounding contribution was a significant reason for that is that we wanted to retain the position that the injuries were to visible injuries several injuries because we always anticipated that we would pursue the argument that we had no liability because that was not reasonably medically necessary treatment from our accident and even if so the the fight for via contributions under those circumstances i don't see where there's a the exposure to double recovery because plaintiff at most is going to double recover five thousand dollars from the contribution act requires the indivisibility of injury that that's the true touchstone of contribution liability whether they're exactly concurrent successive they could all be exposed to contribution manner in the two thousand and thirteen action we didn't need because the good faith finding is the mechanism by which you get court approval of discharging the claim of an out we have no contribution claims against us so typically a farmer selling tortfeasor i want to pay dollars and get free of the case i need a good faith finding so that those other tortfeasor that have claims against me will be discharged those issues are present in this case and so we're really giving an advice from the st corps to apply in the nd action for the determination of setting off what so that that was going to be my question here a bit there's case law th let's assume the medical defense want to preserve the right and protect their interest in the years this is an ongoing they could file a contribution claim in the fifteen action under the auspices that there was a common or indivisible injury for which they should get a share from radio but they did not it is not the lack of consolidation it is not the lack of a good faith finding that puts them in the position they're in it's their inaction in the fifteen action to take those steps legally to preserve their rights and now the statute of limitations has expired it should be no wonder that the town for my solemn at the time for motions for summary judgment that were at the time is that we were monitoring the case to assure we're not going to be brought in through the back door of two thousand and fifteen action they never took those steps they could've taken if they wanted to preserve their we have free riders upon a substantial solvent for a three year window for which they never had exposure anyway that is justified by the only evidence in the record that is a good faith reasonable settlement of the claims for good faith so if they would raise the entirety of this consideration in the post verdict set off issue in the fifteen case a d m is up whether there's been no substantial rights that has been impacted in the failure to consolidate so we submit that there are no issues that are ripe for appellate review i would also note that are they asking this court to reverse a favorable final order dismissing them and the thirteen actually it's not even a prejudicial order the final order is not even prejudicial to the rd party defenders and now they want to  so that they can reduce reinstating revive a point point the plaintiff to prime defending a point they have no standing for that they're not involved in that point and if the good faith finding is overruled that is not ipso facto revive th and the terms of the southern agreement did not require the good faith fight that's our contract and we didn't require good faith fighting to resolve our case and they got up for free in our case related or weren't they really he claims that they were there was no evidence and no finding of the court that they weren't related there's there's nothing there's nothing in the court's order there's nothing that says hey these two were unrelated and so have five thousand dollars as have but there's no finding like that in in this record the courts if you look at the actual order issued by the court they do not deal with the with the issue of allocation to provide no explanation for it other than to say hey it's only five thousand dollars and there are and all the defendants are now going to be limited in their other case to five thousand dollars and there's no explanation we've given lots of exploit explanations here we've tried to after the fact drum up reasons for this allocation but that was not the finding of the court the court never made that that that particular f medical malpractise quite in terms of subtle as it stands right now we cannot collaterally attack that we needed to we needed to attack it at the very end of the two thousand and thirteen case because otherwise we would not have a mechanism to go back and revisit this in the two thousand and thirteen case the problem that we have is this five thousand dollars set off this is our time to attack if we don't you're saying that you're going to be estopped in the future from being able to climb do need to address that at this point in time and figure it out so that we are not bound at the end of this case that we sat on our rights we didn't raise the issue and are not able to present it in the in the other case i would point out that happened in s of the other cases where there is not an allocation in there basically found that well the issue of the side off is you can have the four now or i believe you could have any other evidence presented in the case at the time of that set up we would be fine with that if we could actually present evidence at the end of our of our two thousand and fifteen case to determine the proper set off for the amounts submitted by