good morning please the court my name is chris betide i represent the state of maryland leap sec we're here on a second oral argument second appeal following a medical malpractise trial the issue in the first appeal was whether or not the government could support a claim against dismissed defendant for fault with respect to the injuries alleged  the there was another party that they also wish to allocate fought against that party is not at issue here the plaintiff objected that the evidence that was relied or in by the government i can help you we're fully familiar with  this court has issued a ruling hoping that the evidence was insufficient and allocation had to be recalculated go back and revisit rulings to avoid the effect of that mandate and what what what happened trial and the court said that the issues of liability of if i can use the nurses them as the surrogate because of the churches the psychiatric and the government are intertwined and therefore we need a new trial and then in the separate one the one that dealt with damages because of the death of the intervening death of the plaintiff it also says the court can structure the retrial in any manner that it sees fit most efficient way it's in the stiffer could just records discretion so i'm having difficulty reading that mandate is saying to the district court here's what you must do you must assume that the nurse was not at fault at all and just simply allocate damages between the third party no longer here and the federal government but that's your position isn't that is absolutely our position to tell me how we how i get that out of the well first of all just let's go back to that footnote in what it actually said was that the court could structure  retrial in the manner that was most affected most efficient to address the contested issues remaining after pill and so the only contested issue but that which required retrying which require evidence to attribute any to the er site but but surely that was still contested wasn't what wasn't contested by the government at that point because this court ruled that they had no witnesses and no evidence to support it so here's here's the trial i'm trying to think of this from his perspective the trial judge says the first time through i don't think they need an expert and so i'm not going to let them use the one they disclosed late because they don't need one anyway and the court of  appeal there's no nobody really did the one so go back and retry this case and the trial judge says now i know that i'll let them put in their expert i'll find them for disclosing ablate but let's let's just let's resolve this case on the merits and you're saying our mandate prevented from doing yes and so when the court a nationally rule that the government could not call a witness late it understood fully and the record makes clear even though the trial court erroneous lee said that nobody had raised the fact that state rules applied in alaska in ca action and so the court made a ruling based on information that everybody knew which was that the government saying the court was wrong when it said later on it in terms if the time well the trial i didn't really know that and had i known it i would have ruled differently but yeah i mean the court was clearly wrong that it didn't know that i mean the government in its motion told the court we need this expert in order to prove our allocation claim a claim against the court court thought that was wrong it was the idea of the court didn't didn't disagree with that premise the court the court simply can fluted that based on the and the failure to disclose that i'm saying the second trial didn't a trial court seiji had i really known and if they absolutely had to have the witness in order to prove allocation i would have done exactly what i'm doing now right is going to them to be able to to give the witness and and and find them for their way to rush i mean the court went back and said gosh you know i know in hindsight i think i might have ruled differently had i known what i know now from the from the ninth circuit however the court had all that information and the government had all that information and it never appeal the ruling that that witness couldn't be called it never objected to that order in the uk and the government knew that if the plane to prevail upon its claim that that witness or that it did not have a witness that could support it it's clear you are seeking that we do we need and put aside the probably of the future damages let's assume that whatever damage amount because you're saying we've mandated something so tell me what we meant but that the court mandated that the trial court needs to determine how to allocate fault among the parties to fault can't be allocated that does not include the nursery but for it was so there could be a retrial i suppose as that was a little late as to the one party no longer involved exactly the court was free at that point to decide ok this this party is no longer subject allocation now i decide what the relative allocation should be the apportionment should be between the two remaining part understood and and otherwise essentially what the court did hear what the court would be permitting should it rule in the governor favor in this case is that whenever the court says on a discrete contested issue that the government erred and it needs to go back it was a harmless error and needs to recalculate damages based on the fact that that witness or that party is no longer part of the that the government can simply go back and say well you know gee now that i know that i'm going to go ahead and allow exactly what this court said cannot be allowed where density again that's my question did we say that i don't think we then i mean i don't want the opinion that we know that the court said there was one contested issue the court said on that issue the government did not and could not support its claim against that part but this is not a quick this is not a criminal case in the sense that once jeopardy attaches the government didn't prove its case it can't be given another opportunity not a criminal case with the rule of mandate says that if a party who could and did not appeal an issue that the courtroom saying in a general rule is that we were going to start all over again to do this right you can argue to the district judge whether or not that witness can be allowed but so far as we're concerned go back and do this again and do the allocation  n but so but the the the problem with that is there would be no finality ever when a party appeals that's the issue it is resolved in their favor it goes back and then the court can say well you know i doctrine a lot of flexibility a court can always go back and revisit what they did what they can but they can only do so in its abuse of discretion if the exceptions are not met and they weren't in this case but but none of the exceptions to the law the case under the under the roommate eventually obtained in by way you preach the fed government's responsibility but it did they were twenty five percent at fault had had the other had to junk not allowed the witness to come in they would have been what ninety five percent at fault and seventy five it's hard to say five so they would have had it they would have had a much bigger portion of the judgment than they would then they would have been justified under the evidence because the evidence showed that they were only responsible  that if if we were going back to scratch perhaps but but in this case the court had already decided that that the government could not present that evidence this court ruled that that is correct the government never appealed it never said we export now you would like the case well it's also part of the mandate the rule of mandate says that issues that are not contested on appeal once there is remain and those issues become part of the mandate you can't reconsider them now there's there's obviously also the law of the case doctrine but the court never made the findings here that the law the case doctrine those those exceptions applied the court simply said if i had known if somebody had brought to my attention the statute during the proceedings below i may have ruled differently the record shows that the statute was brought to the court's attention repeatedly and the government at any point could have either moved for a rule sixty b it could have said but that's what planet claims it should have said that it did second argument is on the damage the first appeal the court vacated the damage award for future medical expenses it said the original verdict was based on estimate damages because no one knew when mislead site was going to die so it had to be based on estimates expenses for an estimate based on her life expectancy but during the first appeal she passed away and the court of appeal said well we don't need to address those issues on retrial you won't need to use those estimates you won't need to try and estimate how long she's going to live or what the expenses we know what those expenses are to say it's a little different that what happened was you appealed the award correct yes you said the word is too arch persistent based  grounds you said the word should have been smaller for different reasons various reason then during the process of that appeal she got correct and so and if this court if the first panel had up help the judgement we would have been left in the position we are in under do we do we then move back and say the judgment should be altered to two or should it should the panel have gone on to look at your objections to the size of the judgement it it depends if the judgment was affirm then the death of the plaintiff would not affect the judge but when the court has reversed the judgment for other reasons and says we're going back for a new trial it makes no sense when you're going back for a new trial to say well let's ignore reality let's ignore the fact that she's the amount of damages awarded to the to the duty to defend now to see but then again plaintiff would do with the appellate court have been able to say well she died during the course of the appeal will undo the damages i think they would have had to find some final judgment the rule of finality only applies if the judgment still final when the matter came back to the district court there was no judge her the judgement had been reversed in the main opinion and the damage award in the memorandum opinion had been vacated so it was no judgement and there was no damage award the district court had to now enter a new judgment based on new findings and it had to enter a new damage award and what i guess what i'm trying to figure out is you're not really contending that somebody merely dying during the course  appeal the award what you're saying is he would was vacated by the main judgement and the government never moved to set aside the judgment based on the death of the plaintiff we never sought to set aside the verdict based on the death of the plaintiff though that's all those cases that say that's not have sufficient basis to challenge finale but once the judges have been reversed and we were coming back for a new trial it made no sense to pretend that the plaintiff was still alive and what plaintiff wants to do is say well no you should still work damages for two years after she died why that not that violates alaska law you don't get damages that they don't that don't exist that never happened you get damages full damages for what you actually encourage and that's what the distorted civil according to the instructions of this court which said in the memorandum opinion you don't estimate damages anymore we know what they are now so just go back and calculate the actual damages and the issue of the question of what the district understood the district court explained its reasoning and explained it in in the fin it allowed the government to go forward with its allocation claim and we prevailed on that plane it just didn't let you put on a wait let me just get excluded one of our witnesses and so we had a weaker case than we would have had with that witness when it came back and the court said oh not only would you have a weaker case but you would have been able to present the case at all then the court had to deal with a different issue it was no longer looking at was my discovery order back in two thousand and eight appropriate it was now looking at in two thousand and fourteen since i'm going to be conducting this trial again this court has already set out the requirements that a district has to follow if it's going to enter a discovery order that amounts to a preclusion or and what the court has said is look if you're going to enter a drastic sanction like that not just controlling discovery but actually precluding a claim you have to faith or acted willfully to disregard the court's orders and the court said look i realise it was some prejudice to defend it and having to do this additional discovery and i'd that's why i did that i did motion in two thousand and eight but now i can cure that defendant a plaintiff you'll be allowed that will cure the monetary prejudiced implant and that's why and he said that's what i would have done back in two thousand and eight if i had understood the law the way it's now been clarified for me by the ninth circuit but now that it has been clarified and now that i have the opportunity to to rule on this in the what ended up happening was it was allowed to explore the issues more fully and it changed its decision to some extent the government up with a higher percentage of fault he made a different finding based on the new evidence and it would have been manifestly unjust to to take a two thousand eight discovery aware that the court never intended to be a preclusion order never intended to preclude the government's claim and six years later when you were going for a new trial to say aha but now we're going to enforce that as a preclusion order even though the district never intended that and of the to the district court the district was aware of it and it wasn't that there wasn't any allocation based on the amount of the settlement that was there now i just understand i just didn't know that the oh yes this report understood that in effect this court said as part of its reasoning look plain if you can't be surprised you  your original complaint you claim she was negligent so it's this is not like some new undisclosed party but the court did say yes there was a delay in identifying this expert and that the cause would have caused some delay in discovery some additional expense to the plaintiff and that was the basis for the two thousand ruling but in two thousand and fourteen those issues were no longer there there was plenty of time to do discovery the court for the work science monetary sanctions to compensate the plaintiff and it would have been fair to say based on an order that i never thought was a pollution order that i never intended to pollute the government i'm now going to preclude the government from presenting its its defense and this court in the first opinion told this record it's up to you to retry the issue in a court with the courts and with our mandate i e to retry only those issues which require a new trial or to retry or the entire action and nothing in this memorandum is intended to interfere with or to restrict at this russian the court could have been more clear we reverse the judgment we remain for the trial it's up to you district court to retry the case in a way that you see fit and the courts the district court adequately and forthrightly explain its reasoning at records forty to forty three where it said you know i didn't understand the significance of my discovery ruling in two thousand and eight i didn't realize this implicated a potential preclusion order if i understood that i never would have entered that order i would have allowed the moat the motion i would have awarded sanction against the government and so what he said was what i'm going to mr green as recitation of the facts is simply inaccurate the government told the district court that the effect of its ruling would prevent it from calling an expert a trial furthermore we moved for summary judgment to dismiss the allocation claim based on that basis so throughout the proceeding everybody including the government was aware that the effect of that order would prevent the government from pursuing its allocation claim yet it never appealed the decision provided supplemental authority where the government before the leap second base was decided had actually successfully moved for summary judgment against the plaintiff who they claimed didn't have a competent expert witness to support a medical malpractise claim a court granted summary judgment and that was the end of it so the government understood and make clear to the court repeatedly that the effect would be to prevent it from pursuing this claim so the court reasoning for why it decided after the appeal was decided to go back and revisit the question that it had no idea the effect of that ruling of course the motion itself explained the effect of the ruling to the court was incorrect with respect to amateurs and so so what's really going on here is the court essentially saying you know what i want to fix this because now that i know the effect that what that what that memorandum said is that in the event that the court has a new trial and contested issues and these issues arise the court can consider you know the fact that she died but the court when it made that that picked up when it stated that dick that there'd been no briefing on that issue the government had never argued that the court should reconsider damages based on her premature passing and in fact alaska law precludes the reduction of an award of damages based on future medical expenses because of the premature passing of of the person who's in charge of those damages the parties were never given an opportunity to brief that and had they briefed it the ninth circuit would have known that that ruling was incorrect and because of that doctor the court went ahead and did something that clearly was beyond the scope of the courts made it ok thank you