i believe you are still muted and we will start your clock when you are an idiot and we can hear you in this canyon all of the errors in this case that as a as i prepared for this oral argument and some of the things that i thought i would like to say to the court i was working from home a little bit and my wife happened to be home at the time and she much to my amazement she expressed an interest in what i was doing and she asked me what i was working on that's kind of unusual but all jokes aside she she's not a lawyer but she's a doctor and when she asked me and she usually has a pretty good sense about medical legal matters i told her what i was working on its over i was getting ready for this oral argument she said what kind of case i said it's a medical malpractise case and our next question was well there's a big case and i paused for a minute i said yeah i said you know it's a big case but probably not for the reasons that you're thinking it's a big case for a couple of reasons st and foremost it's a big case because somebody died at a v a hospital and somebody died at the hands of medical malpractise but another reason it's a big case as a playing to her is because a very high court and as i told her there's only one court hire is going to is going to decide a very important question about whether the case is allowed to proceed in the st instance and whether the heirs and relatives of the veteran who lost her life miss rosemary this mail may proceed with their claim a lawsuit for wrongful death so it's a big case for that reason to and as that led to some further discussion about the facts of the medical malpractise i was asked by her you know it seems like an obvious case did they ever try to settle it and i of course  answer her no they did not and i told her that they thoroughly reviewed it that the administrative agency thoroughly investigated it and then they said they deny any responsibility for what happen then shockingly in this court in their briefs they take the position that the law does not provide a remedy for every wrong and they it certainly could be because it deals with a whole category the class three benefit residual beneficiaries on the very ruffled that statue and certainly i think i know how the missouri supreme court or at least if i were to anticipate advocate for your argument that this has been an industry deeply exhausted is because that's what i hear your response to be is that we don't need to send it to missouri is that right or we could that be one way that here so tell me where i beg by my answer yes judge to answer your question judge kelly you could and that was my answer earlier but where to begin here is simply with the quote federal regulations and section fourteen point three state you know that the district court in this case called this case a the hell arrest catch twenty two that's in the district court's opinion it doesn't have to be and it shouldn't be it's not necessary that it be so the government's position and the government's arguments let the district court to believe it's only a catch twenty two dollars if you believe the government's positions and their arguments that section fourteen  personal rep is the administrator on the missouri law and so judge us how do you interpret forty eight c f r forty eight point three you see i mean what what's your interpretation that the government has given us their interpretation that was of the absolutely clear from your grief how you parse that statute and i'm sorry that regulation in judge that you know that regulation is pretty plain on its face and how we parse it and how we view it is that it's simply a case of the ordinary rules of statutory or canons of statutory construction and in this case what we're specifically talking about is is the rule of the last antecedent that a claim based on death may be presented by the executor or administrator of the deceit ince to stay comma or by any other person legally entitled to assert such a claim in accordance with the political state law the modifier at the end of that sentence in a plea in accordance with the political state law if we're going to follow the rule of the last antecedent which the th circuit which your court file our court follows here and the most recent example at the find of it judges is in the united states versus something that i could add d to the oral argument that doesn't doesn't appear in our priests i apologize i wish i wish there was a paragraph on it but it seemed pretty it seems fairly straightforward so to me  d was to allow lawsuits against the government for medical malpractise occurring at the hospitals and other government institutions and so going back to see the rule of the last antecedent it does not modify the entire sentence as the government claims this is not a series of lists with multiple commas this is one comma under the rule of the last antecedent it modifies the item appearing immediately before it in this  instance specially true when there's a comma because it's not going to modify the things appearing before the comma the interpretation is bolstered by the legislative intent it's also bolstered by the use of the word or the disjunctive  and so again when it says a claim based on death may be presented by the executor or administrator of the dissidents a state comma or it's presenting two categories two choices this  broadly written to fill it's to carry out the legislative intent the government's interpretation and what they urge this court the part of the way they are this court to parse that statue is not consistent with that legislative intent so for that reason we would respectfully request the court apply it in this case as as that's plain on its face unfortunately the government serves the district court to overlook it or overthink it i should say but then the district court seems to have overlooked it because the memorandum an opinion it doesn't raise a section fourteen dollars c anywhere fails to cite it at all and so that was very very shocking in this case it was very shocking because it seems very plain answer wrap up my st ten minutes i know i've reserved five minutes for rebuttal but to wrap up that is what distinguishes this case and is is one of the distinguishing features of this case from with and in either of those cases where the plaintiffs properly appointed at the time of the perception of the claim that was true in this case in this case compliance with section fourteen dollars c was had at all relevant times and all filings were name is roger keller and i represent the united states of america this case is rollo vs major the personal representative in this case presented no evidence of her right represent the wrongful death claim and the district court's this case demonstrate any evidence of the administrator rights represent the wrongful death beneficiary claimants because under sullivan vs carlisle missouri law the courts clear the executive of the state has no right to represent the wrongful death beneficiaries well it's going to just focus on the presenting and heart you focused on may be presented by the doesn't that just send you back to fourteen point t and their claim shall be deemed to be presented when it receives from a claimant or a duly authorized agent or representative which i assume would be mullen and i don't think there's any dispute that steve presented evidence of that authority to present that claim so why doesn't that issue a present and just take you back to the immediately preceding regulation and answer the question there  question there the other end would exactly what you said it would take you back committed or in toronto in the present minutes no no no that's are all a mayor back to just fourteen point two to see what what is presented fourteen two ringback tells you when a claim is presented what is what are the requirements fourteen three is who may do it so we started with the who and you challenge the what is a presented and i'm just wondering why that you just don't go back to fourteen  wo and check off the required list of requirements there to see if it was actually presented well we do judge if you look at page twenty four dollars of our brief one of the things we point out is the same issue here is the same issue presented under fourteen dollars and in mater is that the individual making present and part of present is the right to represent the claimants themselves where is the right to it's to present the claim on behalf evidence i think i don't think it's a dispute that there's the evidence of the authority to present the claim on behalf of what they don't want the difference between this and white problems is under missouri law they don't have the right present is the right to represent the claimant and here even will concede that she was an administrator but part of proper present mint is an amended straighter with the right to represent the claimant according to allow themselves to present a claim to which they have no interest to which the government couldn't settle that's even if the government chose to settle under the law they would expose themselves to gullible settlement because as the administrator has no interest in that plane if we paid that plane miss king does have a beneficial interest in that plane could come along while a nd claim and under missouri law that's where we'd be liable to so so mr coe you're saying administrator who presented it to the agency the claim belongs to the wrongful death beneficiaries under sullivan vs carlisle they've expressed expressly said the estate cannot assert a claim because it does not belong to them as representatives lyta so you have no claim with which to assert because that doesn't exist under state law which judge clark rightly found is where you look it is difficult to know if you read it if you read subsection c like mr  o'grady does and just just work with me here on that take it as he does which is that last phrase only is attached to by any other person and you have a freestanding executor or a ministr do you get that language do you do you are you finding it let's let's put aside all carlos carlos an inmate or just to the extent that there are different facts when you say he still gets to the point about you know the forty two actually file claim shall have been finally denied that's the problem with this case the administrator in missouri has no claim with which to present either on his own behalf or the behalf of other representatives he cannot present his wrongful death claim administrator if we can be liable to them under state law as one thousand three hundred and forty six points out or anyone else to whom we can be liable under state law so for example in this case we could potentially see the miss king as a category three wrongful death recognizes massachusetts law but allows for the relation back to the original claim that had been exhausted before the v a the problem with plaintiff's argument is they're trying to give the administrator death they could have filed the plane and then presented on their own and move for the point of a planet of light of but that's exactly what happened sullivan versus carla so actually judge there are two methods that that claims could have been belong to the administrator she exhausted a lot chance of recovery claim they could have then having exhausted that file the last chance of recovery claim in the order and we could have proceeded on that but they chose not to do that for whatever reason so there was a there was at least two avenues for these this claim to be brought the problem in this case the wrong plaintiffs presented a claim and then for the wrong individual administrator presented a claim and then filed brought an action but the problem is the party that brought the action never filed a claim that's the issue in this case what they're asking this court to do is to give them a claim that doesn't presenting the claim must also present at the time the right to represent the claimant under missouri law it ministre her of the state does not have any interest in presenting a wrongful death cla and therefore when the administrator presented the claim she lacked the ability just like in rolla when mater to present that claim now as we've talked about and that's what this case stops nobody with the right to present words keying in the administrators that are presenting the claim and and the administrator could have filed an action presented inaction when then they could pursue the wrongful death action or the last chance of the person who could have presented the claim and you know they say miss king it that mr keller claims miss king could have done it i suspect we would have seen the different argument from the government if she had in fact done so she never did of course because of the position the government took back in mater where they argued the exact opposite they said that she could not there's no way she could have because she did no court having jurisdiction of the case could have appointed her and so the heir having the status as an heir or someone in title to some of these proceeds is not the same thing as being a personal rat or being on an honest readers couldn't finish of the government are you that she could have presented the claim  the government the government would have argued that if miss king had done as the government urges she should have done in this case but of course the government took the opposite position and made or the government said no way because an error or someone entitle to receive proceeds o claim doesn't have the same that's just because the identity of that person that person's name is miss king as an individual doesn't mean she's that's makes her the same thing as a personal rep or an administrator of an estate so we would just be you know it would just be seeing they want to have it both ways is what they want judge you know what what they what they made up for this case and manufactured in this case is that it's a bizarre it really amounts to a bizarre argument for porting that the government is somehow prohibited from taking responsibility for their conduct and settling the case with a personal representative i've never heard you know something so really we're kind of repulsive you know we can't we can't take responsibility for our conduct and try to settle the case with the personal representative well yes you can and here's why because the missouri wrongful death statute very very clearly and very plainly sets up a a procedure for court approval of wrongful death settlements so somebody has got to present the claim somebody has to do it and under missouri you know with with the interplay that goes on with the the c f r and the federal statutes and the missouri statute and the federal case law that gives us guidance and teaches us how things have gone in the past somebody has got to do it in this case the best person to do it was exactly how it was done and if the government wanted to take responsibility and and settle the case with her there's no risk she could have easily said that and they could have they could have easily made it a condition of settlement that she present her thirty to speak on behalf of those heirs we all go to court like we do in every wrongful death case that i've ever settled we see court approval of the of the wrongful death settlement and one of the conditions is that we get the plaintiff ad litum appointed which in this case would have been exactly how it happened it would have been miss mullen and and problem solved no risk of double exposure as the government claims again they want to create this problem to try to make it seem like no way there's no way we could do this because we can't settle well that's not true at all the missouri wrongful death act the reserve awful desk actually solved that problem as i just described they could have made it a condition to settlement that you can speak for the heirs everybody gets a portion of their percentages of the settlement money and they've just used it to find you know they found this what they call the catch twenty two and convince the district court of and they want to exploit it and that's all that's all this is about is exploiting  has as use new phrases right to represent right see i don't i really don't know what right you saw talking about the right to settle the right to represent i've already i've already responded to all of that here in my rebuttal these are made believe problems that are realistic fourteen point three c is very plain on its face clearly saw this as a matter of fact d in the in the district court below i believe my very st paragraph in my response a brief to the motion to dismiss just set out fourteen three c and i said