it please the court counsel of good morning name is john leader i represent appellant mary jo keller i'd like to reserve two minutes for rebuttal as i was preparing for argument i saw the calendar that the court provided earlier in the week and there's a summary of the case that describes this as a car accident case and i'd really like to impress on the panel that this case is about a lot more than that this is about payton negligence at a high level by a federal government official that they later took steps to hide not only that it was regarding a barrier that was installed a necessary barrier for freeway safety that was installed on over one hundred miles of freeways around phoenix that barrier has failed hundreds of times there have been hundreds of accidents because the barrier failed many people have died so this isn't just a car accident case this is a case of high level neighborhood since that was concealed there are material questions of fact regarding due diligence and regarding concealment and the district court erred in granting summary judgment there there was enough evidence if it does really it's also a stash limitation it's all it's also not timely file question correct it would put point do you begin to represent risk heller because one of the things the district judge has done is to say that to attribute to her the knowledge that you had at least as the district court says of this defect correct were did you have that knowledge at a time you were representing this killer in which there would have been an opportunity to do a timely filing there is no evidence in the record when i represented miss keller on this claim i obviously represented no the answer i actually haven't reviewed the file judge so so based on the record the notice of claim the federal notice of claim was served in december of ten so it would have been no later than that and there is no evidence of the record and had ms keller been deposed that evidence would have been a deuced the statute of limitations is an affirmative defense the united states bears the burden of proof on that affirmative defense they could have deposed mrs keller if they didn't there's no evidence in the record when my representation of her on this claim began and you're representing to me that you do not know when you started to represent her that's what i'm saying judge i don't know when and when i began to represent her so the latest it could have been would have been december th or of ten rather if the court would like me to supplement the record that's the question i'd be more than happy to do it but i don't have an answer for the court and i don't want to give you an answer that's not correct but i think the court would agree that my knowledge that i had to before i represented mrs keller in this claim is not attributable to her and that's the primary legal flaw in the district court's analysis this court in perl the rd circuit in maldonado and the th circuit in s but you didn't have that knowledge and you were representing her at a time in which a timely claim could have been filed there's a problem it might be a different problem from whether it can be attributed to her especially limitations when it may be a problem you did not properly represent or i don't understand what that problem would be your honor well if you knew that there was a defect you represented her and the defect was the issue and you failed to do timely filing there's a problem with a defect was also an issue in the state court litigation and there is a shared responsibility for this defect between the state and the federal government but if my knowledge is keller which it's not then the analysis of her due diligence needs to be based on the evidence in the record and the evidence in the record is that she timely pursued her claims against the state of arizona against aztec engineering and there's no reason to believe that she wouldn't have pursued a claim against the united states heads she known and you explain to me to establish fraudulent concealment as a basis for tolling you need to show not just that the government knew and didn't tell anybody but that they took some affirmative wrongful stops to cover up correct what they knew and what what specifically are you alleging they did the government issued a memorandum that was that was signed by john baxter who was a high ranking f h to be a official was actually written by richard powers who was just below him and the memo taken in a light most favorable to the plaintiffs the appellate says that this barrier this design was crash tested it wasn't so it's not required that every design crash tested if someone with expertise some engineering expertise  crossed it does your honor because report three hundred and fifty has two requirements it has a crash test requirement and it has been in service evaluation requirement congress adopted thirty five thousand three hundred and fifty dollars has two requirements and one of those requirements is a crash test there is no discretion at all to buy someone in the government to say these are these are essentially the same thing we're not going to crash test every variation every slight improvement every other issue that comes up there's no that doesn't exist i don't believe there is discretion to disregard report fifty because congress passed it as the crash test standard but if you're right about that that would suggest that the author of the m was wrong when he wrote the memo and should not have written the i don't see how it's fraudulent concealment of an oath if if the memo can fairly be read to say that the barrier was crash tested and in fact it wasn't i don't see how that's not it how it doesn't at least create a question of fact on concealment and i think it's important that the the facts regarding consume one in this case are exactly the same facts that the plaintiff in the june case presented to the u s supreme court in the u s supreme court said there is enough here to send it back to the district court to evaluate and that was it and in but you i mean this is i'm going back to the question of what you as scholars attorney knew  even if we don't think that the knowledge you acquired in representing a different client is a beautiful to her if you knew about it i mean doesn't that at least suggest that it wasn't very effectively concealed it no effect it was very effectively concealed i didn't learn about until april of two thousand and nine which was many years after the state court litigation began there were freedom of information act requests there were testimony requests so what and when did the standard one of the two year period run out  scholars two years from the date of the keller death would have been september th of two thousand and nine long before that there was and it's relevant also to due diligence which is that what else could ms keller have done presumably she could have done a freedom of information act request while others tried that and nothing came of it because you review the names in the interim and at what point did you learn of the problem and what did the statute run from its color the i learned of the government's negligence in april of two thousand nine at late april two thousand and nine at a deposition of mr powers in washington d c and amy amy keller died september th at seven so the two years from that date would be september th of two thousand and nine but again whatever knowledge i had at that time isn't attributed to mrs keller is right and you don't and what point did she file she filed her she's within two years of april two thousand and nine she served her claim notice she ten was the date that she did for administrative claim and the just to quote lawsuit was filed within six months of the formal denial so she did serve the administrative claim within two years of the date anybody could have known of this negligence that we maintain based on this record was concealed or at least there surely has to be a question of fact whether it was concealed and i think that's what the supreme court said in june they looked at the same evidence and they specifically said we're sending it back to the district court for a determination whether this was concealment booth in june or later decided on other grounds and this court has never had the opportunity to address whether the concealment facts presented here are adequate for purposes of equitable tolling i'm only going to ask yes and so i just sort of go back to basics this terrible accident happens this barricade fails everybody knows that it failed that's not a secret brett ok so at that point just putting on my former trial attorney hat you get an expert and you ask why did it fail whether it says in a federal report that it's been tested or not tested how does that answer the question of whether you should file a claim under the federal tort claims act based upon a defective design why why is your case connected and maybe i'm missing something to a possible concealment when isn't the fundamental issue whether how it failed why it failed and you know there's no evidence that you were given a false santer or anything else because of this report because it seems pretty fundamental to me that you would want to know why it failed on your own because even if the report indicated appropriately that it had  crashed tested does that have been crashed as it does that give the government necessarily immunity from defective design or i'll try to and i'll do my best to answer your honor's question so through the state court litigation the common belief was that the state of arizona misled the federal government and said that the barrier had been crash tested we have the funding documents that the arizona department of transportation submitted to the f h w a and those documents say the barrier was funded the st deposition i took in the other matter was a woman named jennifer brown who works for the f h w a in phoenix she thought she testified that she thought the state had misrepresented the crash test issue to her it wasn't until i went above her to the f h w a high ranking people in d c that the truth came out so the point is the reason it wasn't crash tested was because this mr powers and judge it's important that it failed because it was a bad design and had been a bad design presumably the crash testing would have indicated that there would there are a number of wonderful proprietary systems the preferences than the caste system these are extremely effective media and cable barriers so the crash really wouldn't you still have to prove it was a bad design you're out of this design has worked yes we would and even the evidence in the record now before the court proves that it's a bad design this barrier as of two thousand and four had worked fifty percent of the of two thousand and nine that the feds had anything to do with it it was the state's design and the state representative had been crash tested that there was no reason for anyone to believe until april two thousand and nine that the feds played a role here and had responsibility and they were negligent i go to pose mr powers and he good morning may please the court rachel hernandez on behalf of the united states the defendant's claim accrued on the day of the accident she and reasonably waited more than a year passed a statute of limitations to file heard ministry of claim and equitable tolling is not justified here because they neither acted with due diligence nor have they established extraordinary circumstances i'd like to jump into the due diligence portion st and point out a few things on dates the accident happened on september th two thousand and seven i don't know when counsel began representing her but we do know that she filed a state case in this same in september of eight so one year after her accident he filed an administrative claim in the melvyn case on the same grounds and that's important to know because this deposition where he claims to have learned of this discrepancy in the baxter this claim discrepancy in the baxter memo was in the melvin case that deposition occurred in furtherance of the melvin case so that kind of gets us back to the agency questions  course in taking a client tourney is has a right as a duty excuse me to conduct a conflict analysis why because an attorney has a responsibility to him to impart what he learns in cases his client's benefit mr leader as far back as november of two thousand and six wrote a letter saying a key issue in these cases is whether the f h w a as late as as and ninety nine had deemed this designed to be three hundred and fifty compliant or approved for its use on the national highway system so as far back as two thousand and six it was at least known attorney feel to represent a broad well no i think it here on the due diligence issue it's an added bonus that mr leader knew and makes i think a higher hurdle but i will say this is a case that occurred on interstate ten the preeminent highway east west highway in the united states it's part of the national highway system at the moment where her car was not stopped by the barrier and this became a highway defect case as opposed to an exploding gas tank case or some other tragedy it's a reasonable person would look to the federal government's involvement in it i think it it might be something you could google who is responsible for approving barriers who constructs barriers to say that  she acted with due diligence here i just think is is is not sustainable and when you add to that the fact that mr leader himself had the knowledge and probably had a duty to impart it to you all have raised already when you look at the extraordinary circumstance prong of the fraudulent concealment it was a very well concealed as i said he got letters back to two thousand and seven it was taking a side from the fact that he was the attorney and attorney in the community knew that this was an issue the state was saying it was the feds fall it wasn't concealed there's nothing in the baxter memo  the cooper case is clear on this point the fact that i'm sorry can you tell us more about the both the data and the circumstances of the state's claim that the this was little  yes so in december of two thousand and seven keeping in mind the accident occurred in september of two thousand and seven in december of two thousand and seven counsel filed the melvin administrative claim in that administrative claim he said the state makes several claims that the f h w a has endorsed the subject to sign and that the state relied on these allegations alleged indorsement if the state's allegations are true the united states is partially at fault for the functionally inadequate barrier that was present and is present on many state roadways and the state had made those allegations and that was in the melvin in the mold of the ticket i believe that was in the melvin litigation and so there there was nothing concealed there was not due diligence both progs need to be met he's met needs are or rather plaintive has met me ther and so we would ask that you affirm thank you  when this deficit is told to stop running so if if the statute was told based on concealment that occurred in two thousand and five it is not running it did not the problem may be that you knew very well that the united states was a possible defendant and you knew it at a time when well you were presented as killer or the killer family you could have timely filed and you didn't do it that it's true your honor and that sounds like there's a what possible difficulty between you and your client on this point and there may be judge but that's not the issue before this court and the stand but there may be another lawsuit coming well judge that is certainly that is a different issue for a different day but i think we all again until april of two thousand and nine and if it starts to run in april two thousand and nine because that's when the concealment and then this notice of claim was timely filed that and that's the position in the case the the grounds that it were alleged in the melvin claim notice were not the grounds that this lawsuit is based on because when the melbourne claim notice was submitted mr powers hadn't been deposed yet and the negligence wasn't on the state made a number of allegations in the cases in the state court cases but they never designated the federal government as a nonparty at fault the state of arizona never blamed the federal government in any of the state court litigation so to say that the state did is simply wrong the state never blame the federal government and had the state done so the way things played out may have or it may very well have been different but they didn't do that and it's inaccurate to say that they did unless the court has an additional questions i have nothing further ok thank you very much thank both