clients on two separate claims in the trial court one was a claim for wrongful death by the estate the other was a claim for and of the rescue doctrine by  his individual capacity and not necessarily as the mr it is stated we believe that there were errors in both verdicts and we asked that we're going to be asking for a new trial today or at a minimum a diminished diminishment of the damages that were awarded on those claims now i understand that the court has read the briefs and understand the factual background but i need to go through a short recitation of the facts to understand why the defendants were prejudice so prejudice by the entry of the evidence below and the jury instructions that were submitted to the jury this accident happened before before you get on or were familiar with the circumstances of the accident  before you get into this you one of your your lead points as to do with the jury instruction on mitigation damages that is one of the yes how i was troubled by not seeing any mention of the district court's instructions thirty three and thirty eight in your opening brief and your assertion that you could not argue mitigation when in fact the district judge gave instructions and you argued that issue and yet did i miss what the the instruction submitted by the trial court my question is why did you not even mention instruction thirty three and thirty eight the trial court's mitigation instructions in trying to claim that there had been some terrible miscarriage of justice here i think that we attempted to direct this court to the record on  in an attempt to do that as ordered i missed that in our opening brief your ass maybe i did i thought we referenced to the jury instructions themselves as opposed to citing to the citing the entirety of the jury instruction in the brief now i believe that let me put it this way i cut through your opening brief with the impression that the district judge had refused to instruct on mitigation and had not allowed you to argue it and i apologize for the oversight the district court did instruct on mitigation and i believe that that is part of the record always very much a part of the record absolutely certainly and the the the the objection we have with regard to the mitigation which is obviously just one of the numerous objections that we have is that the court refuse to give the instruction stating that the defendant that the plaintiffs had a legal obligation had a duty to mitigate their damages you know if you have a if you have an issue it's on the difference in language between the pattern instruction and the instructions given by the district court right a greater i don't see that addressed at all in your opening brief in our opening brief we had at least attempted to argue that the i p i instruction which we we believe should have been given require as is different in the language and the difference makes a difference because it talks about pla having a duty to mitigate their damages now that the issue is in our minds only one in and basically a minor issue in terms of the jury instructions and that the one i got off with in your brief i believe that was one we may have initially led off with but it was in length you can't initially lead off you either lead off with something or you don't and we let off with that you let off with that argument that argument is a nonstarter under mary under mayor against gary partners which you never cite but we have said that procedure is governed by federal law state law governs substance but there is no state that can tell a federal court what language to give in an instruction right so the question would be were the actual instructions incorrect statements of illinois law and like george hamilton i can't see that on the mitigation is the other instructions though and you agree you don't make that contention i can't find it is there someplace you want to point me to well i think we make the argument that we believe that the mitigation we argued that mitigation instruction was more an issue of state law but if the court it is completely inappropriate to make an argument like that in the teeth of circuit waltz which you do not cite the other side responded that this is a question of procedural law and you didn't reply but i think as a result of communications issues a judge roy has been trying to get a question in and we've been talking here so i want to make sure that you get heard well if that's so kind of it was exactly what you all were talking about because i certainly didn't understand why the defendant were you know it was denied the opportunity to argue about the duty to mitigate in closing but i think we're past that so i want to now talk about the contribution claim because they're the district court found there was no evidence that the deceit and son contributed to his own damages in his rescue doctrine claim and and you didn't respond to the court finding that there is no basis in illinois law to transfer the father's contribute to hurry negligence to the son so i'm wondering is there any illinois contradicts the district court on that point on that point your honor i believe that what we are asking today is that we are not asking that the forty five percent be attributed to offset the actual judgment by ed carroll take on his individual claim what we're asking for his judgment against the a state on our contribution claim for the forty five percent and that is based on the simple contribution statute if a defendant is found to pay more than its fair share of a judgment it has a right of contribution against a third party and in this case what the jury found was that both parties were responsible for causing the accident which arguably lead ed in terre haute huge to attempt to rescue father arguably lead if it lead him to you imagine that scene you must have thought about this far more than we have i have it's it's it was it was a very difficult and very emotional case it caused him to go back and i say arguably only because you're on it in in reality we know now that his father was dead and i know that now and we all know that now but at the time obviously ed was not aware of that so he went back to try and rescue his father which was the basis for the rescue plan and judge wrote or that's what we're asking the court do today is to remain  to the trial court on the contribution claim assuming that nothing else goes back and there's no other relief granted and entered judgment in favor of the defendants and against the estate for the forty pursue this claim well your honor i think the stipulation dismissal is document fifty nine and the order of dismissal is document sixty one that document dismissal apply to any claims that could have been asserted the way we would normally apply with respect to clean preclusion unless you specifically reserved as as was done with a number of different claims back and forth by the multiple parties i had i disagree with the court because what happened here procedurally as set out in our reply brief the initial claim was brought by j b s for its property damage against the estate and e j trucking after that there was a flurry of pleading back and forth counter claims and cross claims and ultimately what was agreed upon was that s only would dismiss it amended complaint seeking its damages against e j and the estate that was the only thing that was dismissed well at that point you had to know you had a potential contribution right i believe yes it was on file at that point yes that story which different documents by my two by my two clients so in your position that is all we dismissed is all j b s dismissed as of what was asserted units amended complaint not other claims that were on fire but that's right and i think that's what documents sixty one demonstrates that only the amended complaint was dismissed nothing else there was if you look at the stipulation you'll see that mr nissan's firm was not a party that only the party representing j was a party that stipulation and the other comply and the order by the court only dismissed the amended complaint so the counter claims were still on file well still active if you will at the time of the trial and at the time at the end of the trial when we requested that the court entered judgment because after the trial the court had just brief this issue and we s a judgment against the estate for the forty five percent it's a straight up contribution claim i think the court believe that somehow the rescue doctrine was an exception to the contribution act we disagree where did you address the rescue doctrine issue in your brief  we address the contribution playwright it's usual though to address the rationale of the decision that you're attacking the district court down below in the order entered post trial only addressed the issue about whether at least my interpretation of the order was that he was not going to offset the forty five percent against ed's individual claim we know he ruled against you we know that you offered a rationale where do you attack the rationale we had we address it in this way he believed that there was nothing in the rescue doctrine that allowed offset and individual claims that was not what we were requests and that's not what we're requesting from this court i wish you would address my colleagues question and i'm attempting to you haven't i read he is asking and i would like to hear where in your brief you address the district court's rationale i see where in your brief you give your rationale i am interested in where you respond to the district judges rationale this is a requirement of appellate advocacy and i'm attempting to in this way i think in our brief we address it in this way the district court said there is nothing in them that rescue doctrine that rick wires an offset to had us that was not what we request d i know that's not what you request and it's not what we're crossing from this court you're just not addressing the question and i apologize it's only that i believe that the district court either did not understand misunderstood what we relief we were a quest i'm looking i think my colleagues and i the district judge might have been right might have been wrong ok we are generally open to the idea that other doctors might have made a mistake that it would be rare for a district judge to make as many mistakes as you are certain your briefs but that's a separate matter but to preserve an issue for appellate review we usually expect an advocate to address the rationale actually offered by the district court rather than to bypass it and hope that the power of your own reasoning will lead us to conclude that there was an error yes and what i am trying to convince the court or at least address the court is that the district court reviewed this as i understand it as a issue regarding the rescue d and whether somehow our request was an exception to the rescue doctrine and our position is that it is not and it's ok thank you very much counsel  ask us to brief the the issue on the main argument they made after the trial was they were entitled to an offset for evidence particular judgment for the forty five percent and then sort of a back up argument if you will was well and if we don't win that we should get a contribution judgment against the estate and you know we tried to respond to the arguments presented in their brief  think they don't get contribution for many reasons number one i think they dismissed it as is where in in that particular dismissal they talk about what is reserved for the full that's discussed was participate in that dismissal memo because we kept getting memos that said mutual dismissal claims and because they wasn't dismissing anything so i finally just said we're not we're not dealing with this or not signing it there was counsel for e j trucking state got out of the case now they're trying to say now well no we didn't we didn't settle that and i this is not in the record your honor but there's a settlement agreement if it's not in the record i'll leave it alone  but on top of that in our brief we get into why the contribution claim fails under missouri probate law they've had many opportunities that's not really very persuasive i mean we've looked into that and near as near as i can tell you're trying to tell us both that the contribution claim was not ripe and was stale and i don't think that can be u time could i well i'm i'm getting mixed up over here but on on the contribution claim the plaintiffs argue that j b s is counter claim against the estate was dismissed right yes emory paul a v s says that the only claim that was dismissed was the one for property damage and that a claim for contributions remain viable right that is what they say i think that's what they said all right so help me can you respond to that ar in like i said earlier your honor in the dismissal it does say in the amended complaint and also says this is what we're preserving and what has not been dismissed in the portion it says this is what is reserved and is not dismissed the contribution claim does not appear it's very clear in that document and yet that that is that's the the gist of that now with respect to the probate statutes there's a one year bar missouri statute for something three four four four which is basically just chops off all claims against the state after of year after the person's death and that would include someone who had a judgment against the person while they were still alive if they don't file that claim within the year after that person dying they are completely barred from making the claims in this case j seems to have held the those statutory restrictions don't apply if the money is not going to flow through the state and here would simply be accounting entries and that's a good point what what are they getting if they get a judgment the state because the money in this case would never go into the estate the estate is essentially under illinois wrongful that the only wrongful death act is created is a be a call to bring the in this case the surviving spouse and three children's claims for the wrongful death of their husband and father now after after the trial we had a distribution hearing under illinois law and as part of that hearing the judge said ok we're going to divvy the money up in this fashion so the money goes directly to the amount paid to the state and it would go to to mr ed and her carriage which i don't think that's correct your honor i don't think so because the money the money itself would never go into the estate the money never goes to the state the money goes to the beneficiaries directly as a result of the distribution here that's already been hell so the state is essentially defendants a party to that hearing oh yeah they were the absolutely and yeah so the only thing that would essentially potentially get them is a claim against our insurance company which i think they might have problems with based on their their previous or what the interplay here between the illinois contribution act and the rescue doctrine claim don't really don't know your honor i i didn't address it because it didn't come up in in the appellant's brief the they have that argument that the illinois contribution act allows the contribution claim against the estate here so that's why i was you know wondering about that right and like i said before i don't i don't think they they have the ability to do that at this point against our state which again has no money will never have any money merely has or at some point had insurance to back up this accident and of itself i'm a little confused by your saying the of state will never have money given that there's a judgment for some two and a half million dollars it never goes through the state well why would why not  question well let's let's analyze that in these types of cases under the ill and i want full death act the estate is the vehicle by which these four people in this case bring the claim there are certain circumstances your honor where the state would be involved if there were survival action there was not evidence in this case that mr perry has it survived after this initial impact if somebody survives if it's for ten minutes you know a year or whatever it might be the survival action would be brought by the state and the money would be then paid to the estate so in that case you would have money in an estate but in in the case that we've got here we're just under the want to wrongful death act without a survival action and the money never flows through these that the state is merely created to bring the action against the defendants to execute the one factual question absolutely and my recollection of this and understand mr thompson's testimony was was very equivocal and very difficult for anybody to understand including the jury but my understanding is he was driving down the road looked in his side view mirror and saw on the side of his trailer that there was a light that was blinking that should not even blinking so he makes the decision to pull off the road where he did in the road way i understand he got out of his truck  did a walk around unplugged what's called the pigtails the electric connection between the trailer in the truck and plugged it back in and he said after that everything is was ok so that's that's what we've got as far as lighting