order dismissing the case against both defendants and order both defendants to answer the rd complaint rd amended comply or we're going to do today and i think you probably understand this already is i'm planning to argue for a total of fifteen minutes hopefully ten minutes and save five minutes for rebuttal mr paul binder who's by video will argue the same way ten minutes five minutes  for rebuttal in that order in both cases and i'm going to be focused on the general electric case although there will be some overlap so i will talk primarily about general electric but there will be is the choice of law question because it's critical not only to general electric and the channeling provision but also critical to comedy question three part test no dispute about that the st two parts i think are easy to answer there is a conflict in the law between japan and here in the united states and in california i think the conflict is real i don't think there's any doubt about that so then we get to the question of among those two jurisdiction which one impairs the interests of the other the most which i think is the test so it's unfortunate that can't do this by chart but the way focus on general electric but it will talk about both particularly as to the standard but i'm going to be focused on the backs of general but your argument now in choice who are your growth in general electric to g s or thank you yes  out of the equation japan and i'm trying the best way i can to be as an advocate to be fair to them i've got three areas that impairs japan st the nuclear meltdown definitely happened in japan there's no doubt about that number one and they care about that because of that nd the japanese lawmakers are going to want to have control over the regulatory and legal scheme that will control a nuclear accident in their own country of course it makes sense to be true of any country by the way but it's true of japan so there's an impairment rd they want this is the more controversial argument but but i think it's certainly a consideration they want to be able to attract foreign contractors to come to their country to help with the creation of these nuclear reactors and arguing that that is impacted if japan is not in control so that's oem someone's out of the equation so now we've talked about japan let's talk about california and the united states which i think both are critical already raised this question you cannot put these in the same box there are different and they both have to be analyzed separately and i'm talking now about general electric so we have american sailors we have american citizens who are own u s ships who were sent to japan by the united states government all those things are on the american jeep california  injuries occurred when they were exposed to radiation on american ships and i can talk about this more as we go through it is specially if you have questions but the allegation is they were in international waters on the and as a result their own american soul so to follow that so far american citizens american sailors on american soul and this dispute this disputing this general electric is against an american company and what's in dispute what's in this speech is whether general electric had a defective product they design a defective product they produced a defective product and manufacture a defective product so although our side of the equation you have americans with the kids american sailors against  american corporation about a product that was designed and created in the united states in california to that that claim california hello why california because california because it's it's where the product was designed is where it was created is where it was manufactured is g e still have its  nuclear headquarters in california i don't honestly know the answer the question i don't know they may have moved it feels like i feel like i've heard that at some point in this eight years of litigation but i know they were at the time the insists involved in this case occurred you have a california case that you think is close to this one in which and something was designed in california for use somewhere else someone was injured somewhere else but i think their whole because we have a number we have a number of cases been placed in in in the briefs that dealt with application where california courts said we're going to apply the law of louisiana we're going to apply the law of oklahoma  these to these things because that's where the injury occurred that's where that's where the the product was actually put in place and so when we have california courts telling us we're going to apply the law of somebody else to the suit in those are those are two important cases in california so can you give me if judge judge say martino is looking at what california courts have done she's going to look at offshore and can let other case should she have looked at i can't as i'm standing here name the are the two biggest cases in california just think the judge the judge say martino did this wrong they're not this good because it's completely different this is i think everybody this courtroom would agree this is an incredibly unique situation in those didn't happen here nothing like that happened here those days i didn't in there i don't understand i didn't as i said stay with me on this please but you don't have to agree with me but i would do want you to understand what i'm trying what i'm saying is in those two cases you have i think what i'm was a corporation that may have both been corporations they went to california and did business they did business in a different jurisdiction in other words by doing that they voluntarily that's what this is what she said it makes them say it's they took on the risk associated with whatever law would apply to them and therefore right that's not what happened here what happened here was we have hundreds of sailors who were sent but at the request of japan by the american government the present the united states to a different jurisdiction because they serve the american the united states of america they didn't choose to go there they choose to so they're served their country those cases are not remotely the same they're completely different and so i think that answer to your question is the same analysis that applied in all these cases and there are a whole bunch of them and i think the attack the same analysis should apply so this step away from a just a nd if we can and i do want you you don't have to agree with me but i hope you understand what it is that we are say because i think ga on this issue is very different than tepco what we have is american citizens suing an american company that produced the product this involved in this case in california in a california court in a diversity case and what the argument they're making is this ought to be controlled by japanese law and it only became you know what happened well i guess in this case completely dismissed so the net result of all this is no little an american ship based on the allegations of the complaint which is all we have to have been no discovery whatsoever on the allegations of the complaint happened in international international waters which according to the treaty the convention on h means it's under the americans flat and it's all american soul so where did the tour the car right to go there were the tour happen the bad behavior all happened in the united states  happened to pay him that's where the tsunami happened but that's not where the bad behavior was that's not where it was designed that that's not where it was manufactured that's not where it was shipped from that's number one number two where did the injury happen the injury happened on american soil on an american ship that they didn't choose to be on they were serving their country and it's savvy to how you distinguish off shore because in both of those cases the the point i was trying to make ok but but i can i just put it in a bigger picture i mean just think about if you just playing into it what you're saying is if you weren't in this g wasn't joined with tepco and this litigation your case and there are nary course would proceed under california law in california as it's true all day long deepak all day long it would be a ridiculous argument which case should be in japan is should be controlled by the way the court here can apply japanese law just as well they can in japan the what they're what they're saying is really q are there any accountability this entire argument is jean walks away no matter what they did however bad it was doesn't matter they walk away no accountability what so ever this makes absolutely no say it's it just doesn't i guess academically you can make the argument we have smart lawyers on is that you know they've had a they don't have to argue this and i'm sure they're about to do it but it just specific i don't think this specific thing was ordinary ok i'm getting very nervous about right now but can we can i in with this i don't want to leave out that i think the c s c is critical to this question too and i know you're on a road or an opinion on this and you very much focused on this and magicka and this case and i think it's critical that this is a not in the interest of the united states of america for all the reason your honor has already written i won't talk about it now because i'm literally about to run out of time did the district court abuse its discretion by failing to give serious weight and due deference to the interests of the united states government as articulated in the united states government's and now as an abuse of discretion standard we have to show that since the court did apply the correct law that the application of that law was illogical implausible or without support or input says that may be drawn from the fact now the district court in this opinion following the motion to dismiss the rd minute complaint did not go into a full analysis of the movie factors instead judge samar cino focused in on what she called quote significant changes since the th circuit decision and she numerate three of these significant changes the st significant change was the choice of law analysis that she applied to tepco which i'll get into in a minute the nd significant change was the japanese govern its objection to the suit and the rd significant change were two issues one related to tell the other related to negligence and strict liability that she ultimately determined did not tip the balance in favor of dismissal so with respect to the factors she used to to support dismissing this case it was simply choice of law analysis in the japanese government subject so what defies logic it is raw one of the significant changes since the th circuit in that list did not include the because briefed by the united states government that brief came after the japanese brief yet while she mentions the brief was was filed she spends no time discussing the brief or the implications of the brief and most importantly doesn't discuss the serious public and foreign policy interests of the united states that were developed both in that brief and in the th circuit's opinion in the one sort of pinion what you all said is that if a country knew it could receive the benefit of exclusive jurisdiction the exclusive jurisdiction provision by becoming a part of the c s t after a nuclear incident has occurred within its borders as japan did here or even avoid foreign jurisdiction altogether by virtue of international only there would be less incentive to join the c s c this was raised in the th circuit opinion echoed the sentiments and the  opinion in the interest raised em of his brief where the state department said adding that international comity requires dismissal of suits brought in the united states by u s citizens for interest from nuclear incidents abroad would effectively provide for exclusive jurisdiction without the other components of the treaty united states policy does not call for advancing one element of the system in isolation of the other but this is exactly what the district court has done identifies and calls in her opinion she says significant change since the th circuit opinion is the japanese brief in opposition to this suit if not a channel of the th circuit opinion because we have the benefit of the japanese very what what it is  i'm what paige do you think that the us that the us said this will impair us interests i don't see anything in here i think the us was very very careful in this they they said for example on page  three that our interest is not required dismissal at this time elsewhere they said that they did not believe that the court should give the is that the court should give due regard to japan sprit but the united states does not believe that the district court abused its discretion so i mean throughout this brief the united states was very very careful to say we are not asking you to overturn the court based on our existence but you can decide that it was not an discretion and judge sam martino then comes through and we left open in our opinion that there might be additional circumstances that ought to be factored into this and that the question of comedy is is  saying that the circumstances might change in her analysis what i'm addressing is that in her analysis of what changed there was no weight given to the position of the united states government she doesn't analyze for example what your honor pointed out was that  with respect to the united states interest it does have a significant policy foreign and public policy interest in the application of this yes seat and that the exclusive jurisdiction provision is a bargain for exchange that the countries enter into stated that this case and the japanese government becomes the poster child for recalcitrant countries who choose not to join the c s e but it doesn't tell you that doesn't tell you anything about choice of law and choice of law could be an additional factor in the comedy question that is true so let's look at the choice of all our analysis what she looks at with respect to choice of law are essentially three distinctions that she points out one is that under japanese law essentially strict liability would be the only c action the nd is that the burden of proof would be high probability of causation as opposed to preponderance rd is that there would be no punitive damages now the question is if the judge agrees that japanese law should apply could the judge apply those those changes could the judge have dismissed all causes of action except for strict liability dismissed the punitive damages allegation now there's two of those three issues gone and simply give an instruction to the jury that instead of being the instruction is that you have to find by a high probability of causation if the judge is able to do those things within california courts then the balancing test then becomes skate court she can address these issues how then does the matter balance with respect to the what i believe you were can serious public and foreign policy issues raised in the state department's brief and in the th circuit opinion regarding the incentive that's created if to join the c s c if countries know that they could get the exclusive jurisdiction through another means by their legislation that will then be given deference in a cow in american court and the case will then be kicked out in a national and it's not it's not by virtue of the c s c that japan gets exclusive jurisdiction it's by application of california's own law with respect to personal injury claims there has been zero provided to us about the amount of this money that is actually for personal injury claims and the fact that that are the flipside of that is would there be any reason our clients cannot move forward with their cases in japan we have a lot of sick servicemen and women who live here in the united states the the doctors who have treated them are here in the united states the witnesses who've observed their injuries are here in the united states they were injured while they were on board the naval and vessels where the witnesses to those injuries are people here in the united states so it's the flip side isn't whether it's a question that we would pose is that our plaintiffs cannot adjudicate these cases obviously japan has adjudicated a lot of these cases my understanding is that the vast majority of them have to do with business losses and not personal injury  d do with counsel do we have any idea whether they've dealt with any personal injuries i do not know it would have i would assume they have to but i do not know yeah i mean the seems like quite in the mission on your part that you wouldn't know whether because it would be interesting if it was all business losses that certainly might lead to actual here but but how do we how do we figure that out we didn't want to do this is we have anybody injured in japan that we know of we do not have we have not gone to the point of discovery so there competent evidence that we be able to produce well i've been on a lot of that a lot of stuff in your complaint comes out of reports in the new york times about about about nuclear the construction of nuclear reactors and so forth is there nothing in the new york times about people on the ground injured in japan the not to i'm sure there is but we have not we do not know whether or not those people gone to the compensation system the information that we've relied on is information provided by lawyers and if we could get discovery on this we would like to know that fact but the what we have been presented with thus far are large generic numbers were guarding these compensations which we understand through the contacts we do have in japan are mostly related to business interests not personal injury so the abuse of discretion in this case was failing to give the same deference to while the brief was not a full throated position that the case needs to stay in the united states the issues raised ought to have been discussed by the district court and we think that there is a based on this court prior ruling in order in tepco one that there was enough of a position strength of the position of the united states government that the case should be remanded with instruction to order the defense to answer the  american plate and i'll reserve the rest of my time for abo the district court explicitly analyzes the interest of the united states and you can find that on yard twenty seven to twenty nine i think the source of mr viner's confusion here is the headings in the district co judgment those headings are because the district court's analysis was responding to tepco those arguments but it is not that the district court exclusively viewed the japanese government brief as important and ignored the us government brief to the contrary there is an entire paragraph in which the district court walks through and it quotes this court's determination of what the united states interest was and in fact that is exactly the interest that mr barnard said it didn't in alliance where it says the united states believes that maintaining jurisdiction over this case will help promote the convention on supplementary complicated reading from page twenty seven  it's twenty four dollars of the district court order and i think it is twenty seven dollars or twenty eight dollars of the excerpts of record it's a paragraph that starts during the appeal to sit down and that's i've got i've got r sixty nine dollars i think it's in two places because it's part of the notice of appeal and the court then after walking through what those interests are a good knowledge is that both the interests of the united states and japan are important competing policy interests here and it weighs those interests because explicitly says it's weighing those interests it's true that it's not a vote luminous tome of analysis but the idea that the district court failed to recognize those interests or give them wade is directly contradicted by the record but taking a step back for a moment where i think i want to start is court would conduct a legal analysis it would be facts on the ground some new fact that showed the urgency of the japanese and and she doesn't cite japes emerita merida doesn't cite any knew any real changes in fact changes in law she just did a traceable analysis the briefs had already been filed although she had not considered them but there they were never discussed at great length and the opinion so i'm just saying what what really has changed are so i think the court actually does change facts in the very next paragraph after the one i was reading from before that japan's interests have got grown stronger because now the japanese government has paid more than seventy six b in dollars the evidence of that in the record it was supported by declarations that we submitted in connection with our our motion to dismiss from mr yamazaki and i didn't describe the type of claims it described them but in fairly high level terms as to whether they were collective actions whether there were claims brought through the compensation system whether they were suits but it doesn't go through and say therefore this that and the other thing though the declarations do explain that the compensation process permits claims and recognizes claims for bo injury and for psychological distress caused by radiation emissions to the extent those can be proven and so that in fact this court held and the district court held that these claims are  held in this court recognized that the claims the plaintiffs have can go forward under the japanese system so i think i as he said about that i notice that there is a statute of limitations attached to that conversation act what is it and preclude the plaintiffs in this action from recovery i believe it is it can your statute i think to the extent that it would preclude their action if that was causing the court dismay i think tepco would be willing to agree to within a if they re filed in japan within a reasonable time to waive that difference really yes but provided they filed it within some reasonable time i want to be with for an indefinite into the future but i think i our view and the view of the government of japan is that the proper place for these claims to be resolved is japan the japanese government and  tepco have worked assiduously to compensate claimants the goal is not to deny compensation where there is a legitimate claim the goal is to figure out whether there is a legitimate claim make a reasonable fair and consistent determination of what their compensation should be and then providing that's why when judge seymour keno st ruled on the motion to dismiss it was about thirty billion dollars that the japanese government had and tepco and paid out by the time i got to this  was in the fifty billions it is by the time it came back to judge zimmer to you know it was in the seventy billions and that was a factor the judge similar to you know recognised as in increasing the japanese government's interest yes that is the number it's a ma the funds currently isn't sufficient to compensate playing the claims of the plaintiffs in this case yes i think that i mean obviously it depends on  what the all to me that amount of damages would be but yes i think there's no question that you know provided that the japanese government continues backing the system that would that there would be funds and the japanese government has made clear that it's you know to extent there is a threat to the willingness of the people of japan to consider it continue its generous funding of this claims process that threat comes from the risk of inconsistent adjudication because this claim would go forward in the united states he was no suggestion that there would not be a funds to compensate if it were going forward in japan is there anything in the record to suggest what what percentage of the seventy billion dollars plus is going to personal injury supposed to business losses there's nothing in the record your honor is there declaration and professor taniguchi is declaration talks about the kinds of damages that are available there is this concept of a sharia oh that would include pain and suffering and of course it would include any bodily injury that's the result of radiation emissions but you'd have to prove it but it takes it you could prove that these were injuries caused in that way contrary to the findings of the department of defense then they would be able to make out a claim it's not it's not the cl not the place of the injury but the place of the wrongful conduct and that is not just in the canon offshore it's in a whole host of cases that are cited in our briefs that again and again say the relevant factor is whe just a waiver that there was any error of choice of i as to tepco that was demonstrated as i heard mr edwards argue that these two issues have to be analyzed separately and are very different for kept going g e but if you look at plaintiff's opening brief there conduct occurs so for example mccann says in the cases in which a california resident is injured by a defendant's conduct occurring in another state california choice of auditions generally hold that when the all the other state limits are denie liability that state's interest is predominant and that's mechanics and reich castro hernandez sierra tahoe again and again it's this conduct mccann even puts it i think in a more powerful way which is only when a defendant exposes persons to the risks associated with a toxic substance through its conduct in california could california choice of law principles allocate to california the predominant interest in regulating the conduct california cases that say when the conduct occurs in a foreign jurisdiction that jurisdictions applies and nothing on the other side of the ledger just to return back to the  point again what i would say is i understand judge wardlaw your concern is that if nothing is changed that the district court was not at liberty to revisit the decision now i'm i'm i'm not suggesting just a court can change your mind so i think if that's the case that she did say there were significant changes and i just that was part of what she said that i didn't buy so i think what she said really if you take out the headings and files because i think the headings and by the way the clearest evidence of the headings or tracking kept those arguments is that the rd she identifies three different things as significant changes in the headings and then the rd one says this is not a change right so that she is clearly mimicking temp goes arguments and then rejects the rd one but as to the st two what she says is not the whole universe is changed what she says is that it was always a very close case as this court recognized between u s and japanese interests but as she weighs them sitting there now she thinks the japanese interest is a little bit stronger and what this court held in cooper one is th case intrusted to the district courts discretion and my opponent has conceded that it is only if they can show something illogical implausible or without support in the record in the result reached by the district court that's as they put in their reply brief in the result with this court be able to reverse but this court is already holding cooper one that either way it would have been within the district courts discretion that wasn't just this court's holding that's what the united states from the department of justice the state department is there any reason to ask for a for a renewed statement of interest from the united states no your honor i don't think so or the united states has expressed its interest here japan has expressed its interest as my opponent actually argued the last time it's undeniable that the united states is aware of this with a geisha and if there had been a change in the interest the united states could have filed a brief in the district court and neither party suggested that that was necessary or appropriate the district court had before it the two statements of interest and waive those and i don't see any reason why it would be necessary for this court to seek a new statement in particular where the other side has not requested it one other just factual point i just want to note although it doesn't follow directly i just don't want to leave it on the inter there was no argument the district court was about two and a half hours of oral argument the court did some initial argument provided a written can it if there was a break the parties came back and argued extensively on these issues  japanese interest has gotten at least somewhat stronger the additional expenditure of tens of billions of dollars the additional adjudication of tens of thousands of claims has to make that interest at least a little stronger in the choice analysis clearly cuts in favor of japanese law here my opponent really hasn't articulated any basis why as to the issues for tepco that isn't the case what he said is that those legal gippi japanese why would be easy for the district court to apply the district court disagreed but easy or not that's actually not the comity analysis the comity point is that this is a deferential doctrine in which the right of a foreign sovereign to adjudicate a case is being respected by this court and when that foreign sovereign law is implicated more differences over to that foreign sovereign whether that was easy or hard it's still one more thing that weighs in the balance so the only changes have been in our favor when last question for you  are you aware of any american personal injury claims that have been litigated through the compensation act in japan yes in mr yamazaki his declaration and in fact i think in the united states statement of interest they recognize that there have been successful claims brought by united states nationals right thank you counsel thank you  your honor in may it please the court david wiener appearing on behalf of defendant general electric under california is governmental interest test when a plaintiff is injured by a defendant's conduct occurring in another jurisdiction that limits denies liability for that type of conduct that jurisdiction has the predominant interest and would be most imperative if it's a law is not applied california supreme court the th circuit have repeatedly recognized this princip including in cases brought by residents of california who will suffer the alleged harms that the defendants conduct in the state and the district court here properly recognized and apply this principle and finding that the channeling provision of liability there is not because of the limitation occurs by force of japanese law right but it did it did they know the japanese law was in place before the supreme agreed to supply the reactors or new japanese law came into place after you know so the japanese the operation of nuclear power plants has the potential for creating enormous liabilities and damages there is some mechanism that needs to be in place to accomplish two goals number one is to encourage companies to participate in this sector but the nd is that there needs to be a mechanism that ensures compensation for in for in individuals and businesses who are injured as a result of exposure to nuclear damage so japan has done that in precisely the same way that the united states does it that other nuclear power nations have done and that is she annoying all liability to the operator the licensed operator of the nuclear power plant all operators in turn are required to maintain minimum levels of insurance in the participating national insurance pools in japan i think the insurance requirement was one hundred and twenty billion yen and then there's a governmental backstop where the government commits to providing compensation for individuals who are affected if damages exceed insured amounts japan has done that here your honor as mr holland noted i think japan the japanese government has provided something like eighty five billion dollars in compensation to affected individuals and businesses as a result of the fukushima disaster and so in precisely in cases like mccann in our know it from this core castro and offshore rental california choice of law principles or recognize that when another jurisdiction enacts a law that limits or denies liability for the purpose of encouraging industry and business that that jurisdiction has the predominant interest and those interests would be most impaired if their laws are not applied and so it sounds like she's trying to piggyback on to tepco here i guess i'm saying what is the nature of the claim against where was the product designed and manufactured so the there plaintiffs have have argued now that this was all done in california but if you actually look at the allegations in the complaint that's not actually what they actually were they designed to menu i think it was done in a number of places there may well have been some more here any designed to manufactured in japan evidence they were designed in fact part of they were installed into base certainly were installed and the allegations in the rd amended complaint to the extent they specifically allege where g e did anything it's their allegations of g e s conduct in japan and so specifically for example they allege g e was responsible for lowy lowering the sea cliffs where the plant was constructed and that that was one of the the d facts that resulted in the meltdown to fact yes but they don't have to prove a well the knightly enjoy the wrongdoing they also have a negligence claim there's a strict liability claim and that actually contrasts sharply from the way that the compensation act works with perspective if a so plaintiff's claims against tepco it's purely showing causation and damages your honor should they get back to your question about where did this occur and i think even if plaintiffs had alleged that there was design work that was done in california when you evaluate whose interests would be most impaired which is the basis for california's government interest test the analysis still falls in favor of application of japanese law and the reason for that is that when you consider what's on the california side of the ledger and you know there's an interest in providing compensation for california residents california doesn't have an interest as to nonresidents but there were some some plaintiffs who are california residents as to those individuals that the interest is fully respected from by way of application of japanese law precisely because there is a claim against tepco that provides full compensation so that interest is protected by application of japanese law and as i mentioned before one of the purposes in an acting the compensation act this is an article one of the act it expressly states that one of the purposes is to provide compensation for injured individuals the other potential interest your honor that california might have if you were to assume that pla alleged some design work occurred in california would be deterring alleged alleged negligence or or strict lie or the imposition of strict liability and that interest also is respected by way of application of japanese law and it occurs in a in a slight the more indirect way but it does occur because the premise of the compensation act again it's the same thing you have in the us with price anderson it's the same thing that other nuclear power jurisdictions have is that there is still a requirement for licensing and regulatory oversight which ensure safety there is also the possibility for the entities so there are all sorts of ways that application of japanese law can still fulfill those same requirements and interest that california might have and again if you're to hypothesize a nuclear power accident that occurs in california involving a g e generator or a g e reactor and you had plaintiffs coming in with the same types of claims against g e under price anderson those claims would japanese law is similar to us law underprice andersen it operates in very much the same way and it's designed to foster that the nuclear power industry the japanese government was very clear about this in it brief in this court where it made it clear the importance to maintaining this replied system for compensating individuals and ensuring that that carefully wrought structure is is respected there are no other cases other than this one that have been brought in fukushima outside of japan that have been permitted to go forward there was one lawsuit that was brought by a proposed class action of japanese businesses against g e in the district of massachusetts that was dismissed on for a non convenience grounds under the assumption that japanese law would have to apply to those claims again recognizing the important interest that your pan has in maintaining the system for for controlling how liability for nuclear damage claims is is handled and with respect to the california cases  we have been citing these seem groups of cases multiple times over mccann offshore rental are no castro and plaintiffs have largely ignored them and they have no way to distinguish those cases they've for the st time in literally five years have suggested that those cases are distinguishable distinguishable based on the notion of voluntary ness i don't think that concept actually was used in mccann i know it was present i think  offshore and possibly in castro but at the end of the day even in those cases the that factor was of far less significance to the courts and malice as then the importance of maintaining the integrity of the foreign jurisdictions liability scheme and i think it's instructive if you compare this case and you compare the interest at stake with the compensation act to make can there was no real concern that the failure to apply oklahoma statute of repose in that case would undo some carefully wrought system for dealing with asbestos and mesothelioma claims that would essentially undo that entire industry here however it's a very different situation there is a concern about failure to apply channeling in this case and what impact that will have potentially opening the door for liability and signaling to other participants in the nuclear industry that this mechanism that they have relied upon for literally decades is no longer potentially available to them and it occurs at a time when the nuclear power industry in japan is clearly in flux post because shima and the government of japan has again made that very clear signaling to us courts that opening the door of a liability in using a different liability scheme other than the one that they have a knack did would harm japanese interests you know the the few cases that plaintiffs have relied upon in this court on choice of law  easily distinguished marsh the monkey a case those are cases that involve limitations on damages and whether those types of laws can apply to a nonresident defendant and the monday a case in particular is very instructive and that actually draws a distinction between thesis that involves laws that limit liability like offshore like mccann and castro on the one hand where there is an interest in applying those types of laws to nonresident defendants versus on the other hand the laws that simply limit damages where there is not a recognized interest in applying it to a nonresident defendant so even the case law that plaintiffs have relied upon in this court favors the application of the mccann line of cases just as the district court did here in finding that japanese interests would be most impaired if its laws were not applied if there are no questions your honor i think judge the martino got it exactly right in this wind carefully following and applying various stablished california supreme court and th circuit precedent in concluding that the compensation act applies thank you can thank  arguments that were made now that we have not talked about that's all i want is for a couple to three minutes all right you can have two minutes ok so let me start with simple things i want to be sure that the court understands and i'm confident you do already that is this result that they're asking for occurs then what's happening is both depth and general electric get exactly what they would get under the  bargaining process in place it wasn't it wasn't and effectively if the court does this they're getting i don't know i don't want to tangle in this because i know i don't have much time there are twenty three other things i want to make sure i mention and i just this is a rhetorical question i don't expect you to answer questions does it not as you had this to hill been listening to this whole discussion your honor asked about when whether they contested that they were all american ship in the us questions about what the provisions were in the contract relationship between g and tepco your honor to say cap said multiple times that what are the facts what are the facts does it not bother you that there are literally no facts except the allegations of a complaint eight years later i mean think about for a nd about what could be i'm just abstract i don't know what to say as there are contractual relationships between g e and tepco there could be foreign provisions there could be liability provisions they could have specifically specific issues about liability we don't have any ahead there what's in it we haven't even been allowed to ask we don't know anything the ship your honor the ship up we're having we're quoting the new york times as your honor judge bobbie as you pointed out is in the new york times because it's all we know we haven't allowed to ask them anything and so we've got think it is fair by the way your honor i remember i did miss this i can almost memorize the language of your opinion bobbie i mean i know exactly what you're saying which you said was with respect to what can happen you did say it was fluid very clear about that and what you said was there could be factual development none of that has occurred you said secondly the countries could change their positions because of circumstances none of that has happened and then in fairness you said in a footnote connected to that same paragraph that there's been no determination of choice of  and you don't agree that i do not agree with at all that ga ga will be will be responsible just like any company manufacturing a product in the united states it is true the price anderson applies to nuclear accidents and you know i think what he said was the g e would be protected if there were an accident in the united states sorry i didn't hear that yes yes you are that would be to thank i believe bobby honestly you know more about presidents than that i i well i've told you everything i know but thank you thank you  donna yes so there's two things that i'd like to address st is if we imagine this case going forward in the southern district of california before judge entire case would be causation and damages all of the people who are necessary for causation and damages are in the united states the costs associated to do with the health care that would be incurred  and circumstances that would have to come from witnesses and documents and testimony and an expert within the united states not that i want you all to judge if we go forward with t way supported by anything in japan the plumes in the extent of the radiation are things that are going to be known through monitoring primarily on the ships to the extent that there are radio nucleotides and in the bodies of our plaintiffs would be determined from testing they do in the united states so with assume only as the tepco there is no reason for this case for our clients to have to go to japan because because liability having this moment of silence i just want to thank everybody for actually getting on planes and lying here and coming here to argue we are announcing in general that we are going to start allowing eternity's to appear by video and making other arrangements in light of the coronavirus spend we really appreciate your all switching your plans from san francisco to l a and i the fact that we are based here and coming out to argue great thank you it's nice to hear issue is cause a sion and you were responding to that that was why that issue could be fairly tried in california it could be fairly tried in california because the real issue with causation is what exposure did the did the sailors get and the exposure that the sailors got is going to be determined by whatever instrumentation there was on the ship whatever is found in their bodies we've had we've had servicemen and women who've had for example your analysis and blood tests that have shown various residual heavy metals in their bodies as well as sort of clinical determinations based on a constellation of symptoms and a known exposure so those things would not require that there's nothing in japan that would help with that other than potentially additional documentation regarding the extent of the dave the plume in that thing both those types of things but those were also captured by the united states government's ships so with respect to the extent of the extent of the exposure which would relate on on causation those things are not probably are even known in japan those things would have to come from other sources the last thing i would say is what i think is is is a point worth noting is that in the with respect to the cases that have come before japan and before the tribunals and the extent to which there have been money paid for for pain and suffering those things are easily known to tepco they could easily easily have had does distinguish those within the declarations and the fact that i that they didn't speaks volumes to the fact that there probably is very little that has been paid in the way of compensation to people who suffered personal injuries there have been no new facts and to your point you're out of the idea that this would develop in facts we develop in those facts might change the scenario we're not there yet and to the extent that judge sam or tino in her decision when she sits when she's coming to a conclusion she says because this is on what i have this on page twenty five but because the japanese government has now made its position known and defensive made a strong showing for why japan's form for one and public policy in interest would be harmed however the court finds that this factor now weighs slightly in favor of dismissal and it's this is all in the balanced argument by the district court acknowledging only the japanese government's position that is the abuse of discretion that and that and that the there is no logical reason why that sentence wouldn't also include however we acknowledge that