discretion in applying the gates crackers to include the class or if if we're talking though about a class that's just for duty and breach why does the injury have to be typical wouldn't just be that as a duty that was breached would have to be typical all because we're not talking about causation correct yes but injury as well is a requirement for to gallop i was lied well why at least want it just claims or defenses and ordinarily injury would be in there when we're talking about a class as to the entire claim but when we're talking about an issue class why shouldn't it just be the portion of the claimant the relevant portion of the claim that has to be typical rule twenty three goes to whether  asking the court to do is inflict an injury no no the injury comes the injury could well come from the actual misconduct and you can't then blame it on the revelation misconduct or shooting the messenger but you could be but the question is you have someone who read now is how well you are living their life they are suffering from no emotional case or so the argument is we should let you run out the statue of limitations and then say it's too injuries really being caused by the attorneys and distract from the fact that your own client had a hole in playing these injuries a lot of people they may be injured out there and just not know how to sue about  pleased the court patrick bronson on behalf of that class the district court acted within its broad discretion in certifying the negligence elements of duty in breach which are indisputable common to all class members a single course of conduct in one state but the sole defendant gave rise to claims of one type of class what harm under one legal theory obviously disagree let me back you up to the gates factors right  did the district court do a robust enough analysis and speak of the gate factors yes your art there are two factors that my colleague indicated went were not addressed in the district court's opinion in the reply brief the type of claims and issues in question that's addressed throughout the district court's opinion the district court performed a very careful and discriminating analysis in determining whether for example the entire issue of liability could be certified versus certain elements of negligent care and that's one page of the joint appendix forty five dollars fifty six cents and onward the nd is there whether the substance of law separates the issues from other issues concerning liability or remedy if you look at the l i principles on which the gates factors are models the question there is whether essentially the district court can appropriately carpet the joints and find issues that can be efficiently in appropriately isolated for common treatment of common resolution while leaving the remaining issues resolution so you see consideration of those that complexity number six potential because of a pact or number seven repercussions to the certification resolution remaining issues do you see that in the record i think in terms  overall complexity of a case i think that i mean the district court accurately describes what the case is about what the claims are it talks about that individual these individual elements of negligence can be isolated for class resolution contemplates what the following proceedings will involve in terms of the resolution of that issue of claims i think that's inherent in the entire discussion judge bebo's in terms of the potential precludes of effect on because it will generate inconsistent outcomes and if you see you see it in g prevails and one trial they can't use that result against another plaintiff and that the brick lose the effect of preclusion and also in sixty one dollars the individual proceedings that will remain with this on causation and damages need not impact each other's to the district court considering out there maybe you considered it let's talk about that  the light of efficiency so let's assume you prevail down the line on duty and breach now you're in the damages phase of this proceeding what's that going to look like what it will look like your hon is a series of many trials like seven hundred dollars maybe many will likely not i think how the district court obviously would be up to the district court's discretion and judgment in terms of how that class proceeding hands out and what hear what you would avoid by using a class device is repetitive expensive presentation of expert testimony on the standard of care so the parties have identified approximately fifteen experts and a majority of them and fifty claimants there's evidence in the record that there are about seven hundred and twenty who were treated at prince george's hospital center at the very least so you have some kind of limited presentation of the evidence that witness testimony that would allow the jury to develop an understanding of what occurred and but again no expert testimony on liability and then you have testimony of the plaintiffs if testimony of perhaps one or two it physician or someone who's evaluated the plaintiff to testify as to the nature of the impact so causation it damages the result in those individual proceedings and most likely your honor like most individual like muslim deals resolved they don't resolve through seven hundred individual cases after litigating the number of these eventually the parties are able to settlement in a facilitator and appropriate valuation of the case to turn briefly to gauge factors because we were on that immediately before hand the gates factors are the means by which we're dominance and spirit already are resolved in the context of an issue class or a vacation what the airline principals did and what the district what that this court adopted two common a indicates the section as a whole not just the phrase material advance delineates the multi faceted increase presently encapsulated under the crown in its concept reporters notes indicates the objective of these factors is to assess both courts and lawyers by it then a fine with greater precision the considerations reflected in the interplay between subsections b three and c four as set forth and exist what the gates factors don't contemplate is that the court go through detailed analysis of the gates factors as pertaining to the issue class and then back up and do an evaluation of the three as a container for the entire client that's not  a judge part of that was a path that the district court that circuit court considered but then rejected in the court considered be three and then went on to the consideration of whether the class satisfied c for if if b three certification were required for the entire claim before considering c four that this court would not have had to go on to see four and the reason is that  common to all class numbers and it's appropriate to give the district under rule twenty three dollars and under general principles of case management to give just records the tool to isolate those issues for for common treatment  common resolution and that's exactly what the eloquence of what gates really left this issue open he didn't really decide either way you know and the th circuit he viewed see forest just ok if you of all all the rest of the circuits who consider the issue have come into alignment on the question have rejected cost and even the th circuit has moved away a stamp moreover if if the entire case can be satisfied as to be three there's courts to consider whether issue certification will materially advance the resolution of multiple civil claims by addressing the core of the dispute in a matter superior to other realistic procedural alternatives that tracks the chart and the person was injured in maryland and cell you're going to be in a morass about which which tort we're talking about here so you know what's the case that it really is pennsylvania all that governs and what's the case that that there was no functional difference between saying there's no difference between d c and pennsylvania there's no issue raised by my colleague there and there's no real functional difference between those two jurisdictions in pennsylvania and like how widespread this approach is or the approach to negligent infliction how about having a separate negligent infliction tort or having a functional equivalent folded inside negligence i've not done a fifty state survey of that sorry so then let's assume that he has something to the point that maryland's difference matters is how clear is it that pennsylvania law really ought to govern all of these i think  e pushed that point because what's my colleague focuses the choice of law question on conduct that is really not part of this this aspect of the case and not relevant to the parties who are actually in the case me this case is about e c f m g s conduct in pennsylvania you see it in g s a pennsylvania corporation it's not about what a coda did it's not about what other state medical boards did for the purpose of determining choice of law it's really about what a pennsylvania corporate citizen did and it would be a strange outcome to have the application of pennsylvania tort law  regulate the conduct of the pennsylvania corporation depend on the fortuitous location of the plaintiffs at the time the particular plant this happened insured and so i think that the district court appropriately determined that really d pennsylvania had the most substantial relationship to the dispute and therefore pennsylvania washed cover and the analysis the sound there could you touch on counsel's argument with respect in this conflict of interest finding there's no there's no argument that the district court misapplied circuit precedent or supreme court precedent there's no argument that somehow but my colleagues speculative argument about the potential impact of this notice upon individuals that that is is contained in a precedent that was misapply the important things who for the court recognizes that this argument does not apply to the over five hundred individuals who are already represent so these are individuals who already are aware of the claimant are already signed up and they're in the record and so this the adequacy argument does not appl moreover it's important to recognize that the plaintiffs don't seek to inflict emotional injury on anyone they seek to vindicate their rights and the rights of the classmate and in any event if there is such a person out there who despite the widespread media coverage of this case words determined that words to be you know emotionally distressed by receiving notice of this and didn't know about it beforehand  under a theory is the cause of that emotional distress the court or the mailman or council plus council or just the messenger for that i mean that we don't cut off easy if him she is a proximate cause of that emotional there are a number of hurdles to overcome i believe for this court to find in favor of my colleagues at the county st is the discussion didn't versus merrill lynch it's a case that side in a page twenty three of  you see if entries brief and as to typicality judd's ereka articulated the criterion acts as a bar to class certification only when the legal theories of the named representatives potentially conflict with cali not talk about this adequacy argument that the notice itself is kind of traumatize your clients certainly there we find that st of all as i was mentioned to judge a strip of that a fundamental conflict of interest is required in order for adequacy to be impaired which is some individuals benefit and other individuals were harmed and we don't that there's no contention that that's the case here by a palace and there's no challenge to that particular test or any kind of argument that the test doesn't apply the district court made that findings explicitly so we believe that just courts finding inadequacy is sound again it doesn't apply to  it was the certainly back up person in that scenario let's let's assume there is someone out there who did not know about this issue and finds out through some kind of  it would be is strange to argue that somehow the the mail carrier or the court where the cause of national distress in that scenario is as it would be to argue that somehow the news media is the cause of an individual's  and and and for the rest of the plaintiffs and that somehow there's an action against them so it's important to distinguish between the cause of the injury and the means by which the injury comes to like the court and class council would be merely the messenger under that scenario and  don't seek any modification to gates contrary to my colleague's contention in its grief we don't believe that gates over rule and modified in any way we do believe that rule twenty three is trent substance and that meaning that the mere fact that a party is claiming emotional distress doesn't mean that the class or vacation is precluded you can see that in the gunnels case where emotional distress was one of the claims of the th circuit nonetheless certified scenario where you know in an ordinary negligence case you're talking about the personal interaction between the plaintiffs and the defendant and you need to develop a isolated it's a common course of conduct and can be addressed on a common basis and without any issue of having emotional distress be addressed separately because emotional distress arises out of the interactions the fact that we are disputing right now what evidence would need to be presented be to proceed him what issues would need to be decided in each proceeding essentially confirmation that the district court didn't rigorously analyze how this case would actually be tried and my friend mark about it as the injury coming to light and i think that's not a framing that we agree it's not about injury coming to life it's about not suffering an injury this is not usual case in which who don't even know that they were ever examined by doctor who are happily living our lives in will continue happily living their lives not with no injury has not come to light but with no injury whatsoever and under my friends the