granted by the trial court the issue that the trial court focused on was whether mr stringer and it really be opinion is confined to mr roger stringer had manifested due diligence in determining the defect in the gun that killed the son and i'm assuming all of you are familiar with the facts and don't need a rest of that i would like to briefly if it's ok because it helped me a lot and maybe i will assist the court go through the timeline excuse me of what happened in december of two thousand and eight mr roger stringer purchased the remington seven hundred rifle at issue as a christmas present for his son zach stringer the recitation in the complaint is that remington knew at the time of the sale of the rifle that there was a defect in the trigger where is that allegation in the complaint i can give you the page  that only applies to the non conclusory allegations so simply stating one element of a cause of action that is reading to new of a defect that's not a fact that's a conclusion so what would be that you need something and then later we say we say that remy ted had actual and or physical knowledge of the design deficiencies prior to the death of justin stringer now we have a lot of documents them back there's a statement from remington and this goes to the project at concealment i don't want to get out of line so tell me exactly what you want me to address and i'll try to do that so i'm trying to understand what is the facts properly alleged in the complaint and you started with we've alleged a defect and then we breath wedged knowledge of the facts now saying minton knew of the defect is not a fact that's a conclusion right so you would need some sort of fact that would suggest that they knew of the defect and then after we've done that we would move to the next fact which is that they fortunately concealed the knowledge we know that and i don't see any of those facts something that's going to help me understand that going to continue to deny all responsibility but settled the case ronnie to made an affirmative statement in the recall that these triggers can fire without that i mean i'm sorry these firearms can fire without the produced and despite any careless reporting to the contrary the guns used by millions of americans is proving it to be a safe trusted and reliable rifle so they're saying that it's free of the fact this is a point at which they know that they're getting compliance from the x m p s firing without the trigger being pulled they don't limit the statement to the walker trigger they say the seven hundred rifles and by this time you've got four years of the simpy as well as the whole history the walker so this statement made in two thousand and ten will you know what does that apply now it's still on the internet at this yesterday so obviously in order to have concealment it has to be after the claim of cruise which would be june th two thousand eleven right right ok so the claim accrues on june th two thousand and eleven so then the next question is what facts do we have after june th two thousand and eleven that would fortunately conceal the knowledge of the defect this i thought was from two thousand and ten it's still there i downloaded this yesterday it's still out on the internet for everybody to see that remington never took the stand this statement is still a statement by remington that can be accessed by anyone using google a statement that they widely disseminated but at the time they recalled in two thousand and fourteen unless you're on the whip rimington website you don't know about the recall they didn't email or sed they didn't do advertising they didn't do ads in the gun magazines like was done scuse me on the court didn't deal with it and i think we could have dealt with it better zachary was fifteen years old at the time of the shooting there's tolling of the statute of limitations during minority to the age of twenty one dollars and then three years further so sack race claims can't be barred by the statute of limitations because he was only twenty two years old when the lawsuit was file dealt more with the due diligence and his access to the due diligence to to find out anything about the gun but let's come back to this he's a minor and his claims for scrap is to say in louisiana until he's twenty if you want to hear some more about concealment one more question if we're ready to move on do you have a case obviously of mississippi case would be great but from any court anywhere in the united states that is recognized to all the way to april th two thousand and fourteen what case for any court would allow us to say that the fragile concealment exists after rimington publicly recalls the product i don't think directors and the sticking it on your website doesn't work you have to have an emmy and there is a whole body of case law that say if you want to get noticed and usually in the class action context i get that but that if you want to give notice you have to give something that's recently calculated to get to the people you want to get it to and empowered one of the ways they did that was to run ads and for instance going to name a nd and ramy to could have easily done that here but didn't they just nd on the website and that was you can't be running to doesn't sell direct and only sells for dealers and i guess the question is can you do that and how much of this can be decided on a real t and we've cited a whole bunch of cases that say none of this is appropriate for resolution at this stage moving on to due diligence there was a full blown criminal trial us a court nose and a conviction that was later mississippi supreme court the crime lab forensics examiner laurie below examined the gun and she testified at trial that she did a variety of tests and that none of those test caused the gun to fire and she concluded from that that the gun was not malfunctioning that's her testimony it's pretty straightforward so i guess my question is if you have the prosecutor relying on that testimony and the judge relying on that testimony and ultimately the mississippi supreme court when it affirmed the conviction relying on that testimony why can't roger stringer allow that testimony you know at that to my mind is due diligence he accepted reluctantly the conclusions of the crime lab examiner and only when he found out later that the recall had happened you know and there's a lot of things we don't know what would have happened if remington had said to the crime lab examiner if they even knew about the criminal trial at that point you know we've had some fire without pulling the trigger you know maybe you should look at this more carefully but we don't you know that know the court doesn't want to speculate but that's something that we will never know but what we do know is that everybody except that testimony is she's qualified for in six expert she did full examination not just of whether the gun would circumstances which is what the mississippi coast law says and if he had you know what would he have done howard a forensics examiner but the state of mississippi had one can't he rely on that she was testifying for the people of mississippi and you know i'm not trying to be acted reasonably i think i'm out of town you can you can conclude he acted reasonably in terms of the information that was available at that time he was you know he had one sunday and then another incarcerated  their life is in shambles the dot the forensic examiner was telling him that the gun was ok and i think he accepted that testimony's any reasonable person would have done thank you thank you hundred rifle with an axe mark pro trigger is time barred by the mississippi three year statute of limitations the district court got it right the fraudulent concealment doctrine does not apply to save this untimely cl i think i'll be the rd lawyer to mention the word timeline today but timelines are very important when it comes to analyzing whether things have been done timely and the timeline discussed i miss buckley was incomplete and i want to complete that timeline now and these are information directly from the complaint when did this accident occur because that under mississippi law is when a cruel or curse the clock starts ticking when somebody must act to investigate whether they have claims in a personal injury wrongful death claim with an obvious injury like a gunshot wound death under mississippi law that occurs in the date of injury and that was june th two thousand and eleven now in a standard operating procedure case that statue of limitations expires on june th two thousand and fourteen what else is in this plaintiff's complaint about pertinent details of information publicly known between those two timeframes as judge oldham brought up the recall and there is not a case in this country that holds that following a product recall that's publicly announced that there can be active affirmative conduct and the public announcement was posted on their website that was a public announcement it was posted on their website it easily accessible by google which roger stringer did do on march  hundred and fifty eight was also made public record in the pollard class action litigation within days of the publicly announced recall and news media coverage related to the recall plaintiffs in their own complaint and this gets into the timeline information directly from their complaint in two thousand and ten they plead that a youtube video was posted for and as they describe you tube for the entire world to see demonstrating a model seven hundred rifles with an x mark pro trigger mechanism firing in an accidental manner without a trigger pull that type of information affirmatively played in their complaint does not help the plaintiffs in terms of making a minor savings is the st time i have ever heard that phrase it's not in the court record it's not in any of the briefing wasn't discussed in the lower court that issue has been waived but let's talk about zachary stringer him of all people if the crux of the plaintiff's claim this that concealed from them including zach that the rifle could fire without a trigger pole and yet that is what zach said happened he possesses every bit of knowledge of the handling and the function of the firearm he was the one who had it in his hands at the time of discharge he one is far in the defense in the criminal matter to exert that as his defense in the case this was an accident i didn't pull the trigger he was represented by i assume competent counsel nothing otherwise has been pled to advance that very defense throughout his criminal trial this was an accident it was the rifle it was not me that was from inception and  whether remington came forward or whether remy tenet assessed the situation yet has not been necessarily it's not at issue in the criminal case number one because there's no mention in the criminal opinion on this that remington had any knowledge of what was going on with the stringers case number but they were nobody ever contacted remington in terms of secrecy a duty of disclosure and there are many mississippi cases that talk about this the duty of affirmative disclosure of facts that may support a particular plaintiff's klein are limited to fiduciary relationships or relationships of close confidence and trust between usually business associates business partners and  a lawyer and his client a doctor and his client something of those natures but to suggest and i'm glad you brought the question up judge when or that remington had any part of the stringers trial such that it dissuaded anybody on that jury anybody in the courtroom the judge the prosecutor the defense counsel the forensic expert to make findings and do as they did has not been pled and is really an absurd remington had no knowledge of what was going on there's never been an allegation to otherwise in this complaint in terms of the state forensic examiner who essentially did vitiate the pla substantive claim in this case there's no allegation that remington had any influence on that person at any communications with that person you know who lacked communication you know of show tunes all my life factor in the scary while it may be a factor in this case it doesn't match up with any of the elements to prove fraudulent concealment tolling there is no affirmative duty for remington to inform the stringer family directly that they maybe have a cause of action against remington though the first time i've heard it is today which i don't have to say the word again i think it was mentioned in the last oral argument waiver that issue was not addressed in any way shape or form in the lower court except and i'm going to go as far as to not call it just waiver it's abandonment there was mention on page one  citation any case no analysis no effort per forward whatsoever it was abandoned in briefing for whatever strategic reason the plaintiffs decided to not advance that argument in the trial court and then certainly not briefed on appeal and then only bring it up today at oral argument screams of waiver problems and waiver in and of itself has long standing traditions and fairness and how things are litigated so to the extent zac and i would point back to the complaint itself there is not one mention in the complaint of zack being a minor the only mention of zach and any sort of age reference is on the rock record of page thirty three paragraph three of the complaint zach is an adult he's an adult at the time that the claim is filed now in terms of what type of case this is what type of case this is a wrongful death claim plaintiffs plead very specifically this is a wrongful death lawsuit filed for the death of justin stringer mentions of some sort of standalone claim for exact are not present certainly not in paragraph or paragraph eighteen of the complaint where they describe their own complaint for everybody to see wrongful death claim to even suggest going down the realm of the minor tolling statute set aside the waiver issue have to look at what mississippi law says about wrongful death there is a wrongful death statute provided for you quickly dash thirteen of the mississippi code and if you read case law and if you read the plain language of that statute it provides for one wrongful death claim i'm behalf of the deceased and in this case justice trainer and all beneficiaries can join in plaintiffs of that claim and we're getting really far outside of the briefing but i will continue with this because it's an important point i think that if you read the cases about the mississippi wrongful death act and the one wrongful death rule essential e one wrongful death claim rule you'll find that when a person of majority an adult brings a claim and it is otherwise on behalf of the estate as a whole and all beneficiary sitting inside of that state including somebody like zack stringer who at the time of the filing of that complaint is over twenty one years of age you'll find that the wrongful death claim is time barred as a whole now there is a lot of movement and back and forth inside of the wrongful death case law in the state of mississippi none of that has been raised properly before this court none of it was waived in front of the district or discussed in front of the district court waiver and i would go as far as to suggest abandonment which is a doctrine that goes deeper than just waiver that suggests that the plaintiffs knew about it had contemplated it and for whatever strategic reason decided not to pursue it but for them to bring it up for the st time in oral argument on appeal is something this court should not take lightly turning back to and i mentioned that time line the paragraph of the plaintiff's complaint that is detrimental to them in many respects not just the affirmative allegations that there was a recall of the subject product in april  of the announcement of the recall on the x more pro that allegation notice of the recall itself and affirmative allegations are added in an amended complaint in pollard about the ex more probing defective an unreasonably dangerous and the basis of an economic loss claim in the power litigation itself matters of public record your honor with respect to judge graves with respect to going beyond just the recall notice are inside of a federal class action lawsuit as a matter of public record and of which plaintiffs counsel in this case say they were required of there are other it's not just that the plaintiffs counsel were involved in some way pollard if you look at doc one hundred and forty nine in that case roger stringer wrote a letter in october of two thousand and sixteen to the court about his situation that's a matter of public record as well inside of the power litigation court can take judicial notice of those types of things of their existence now in terms of the diligence prong that we've talked about a little bit already the body of cases in a personal injury case where there's a gunshot wound and injury and death it's not a discovery will case this is not a latent disease or injury that sits inside of the body nobody knows about it and then you sub one knots of two which is the discovery rule someone a cruel occurs on the at the moment of injury not only does it occur at the time of injury you have zach affirmatively saying he's got a few different stories that he gave to law enforcement following the his investigation of him in a criminal matter but he says and the plane just played in their complaint in this case that zack maintained he did not pull the trigger that there was an untoward event with the product in other words the product malfunctioned whether people believed him or not he gave all the information necessary to excite inquiry into this matter then there was testifying on behalf of the state certainly was not testifying in zack's interests he was testifying so you didn't testify unless the from is a good expert has some basis for offering testimony when not just talking about who is against but testifying for the prosecution the forensic expert testified because the forensic expert did some testing in there right that is true and that testing said that what zach claimed happened didn't happen with that go that's what the testing at least expert that's what the testing movie and apparently the jury relied on that judge relied on conviction was a pale but supreme court right correct now as one person who didn't rely on a keep getting them until i get one that says what i say have i can't say what zach sure should not have done with the advice of his legal counsel at trial but if his legal counsel and him thought there was a problem with the rifle i would think it was their duty to investigate on their own and not rely on the state's expert this does underscore a point that i really need to make in the fraudulent concealment doctrine bringing this these facts back to the two prongs active affirmative conduct by reming remington is not the state of mississippi that is a problem and that undercuts the argument that the state's analysis of the you know what we're arguing about due diligence and when they should have discovered that there was a problem with the god we are talking about that we are and there is an affirmative allegation in plaintiff's complaint that does everything that this court and both the trial court need to know i'm diligence and whether was timely or not paragraph twenty six o it goes on and says that this is the st instance that any of the defendants had any knowledge of this plural it also goes on to say that roger secured the services of an independent expert an independent consultant perhaps it was the very same type of forensic expert that judge graves alluded to we don't know for sure but this is the st act of diligence by anybody in the stringer family to investigate whether there are any civil claims and let's not limit what the duty to investigate civil claims is limited to it's not just remington there are others who could potentially be involved in this to fire a firearm there must be a cartridge loaded into the chamber was something wrong with the ammunition that's also a product claim who supplied zach with the firearm itself negligent trust mitt who taught zack how to use the firearm in an unsafe manner are safe manner that's a negligence claim in and of itself there are other potential claims that needed to be investigated the duty to do so was triggered at the moment of death under mississippi law and the only allegation of diligence of any sort of civil investigation of claims is in paragraph twenty six dollars of the complaint lays out everything that needs to be known and what happens when the diligence falls outside of the three year window outside of the three year window to bring the claim that's not due diligence the claim it already expired it recall they allege the serial number but not the actual that it was part of the recall is remington aware of whether it was actually recalled it's based on our own or standing it would be in the general timeframe of the recall this is a routine would know by serial number one briefed before this court or before the lower court and potentially abandon before the lower court i would argue that there's a huge waiver problem there now in terms of i'll close with this that a personal injury claim where there is a readily apparent gunshot wound injury and then allegations of fraudulent concealment but no interaction between the plaintiffs and the defendants there is no fraud and there is a series of cases including from the th circuit and from the st circuit the th circuit case as we discussed in our briefing where the th circuit looked at this very issue with remington rifles and rejected the plaintiff fraudulent concealment tolling arguments i c m out of time thank you for your time today we ask that the district court's opinion be affirmed all right thank you go court gary gamble for the plaintiff let me set the stage here you have bloomington who is an icon of american guns who would think they'd ever produce a gun knowingly put it on the market knowing for years that that it has a defect and that's what we now know they did because of the disclosure of the dockets documents because of the recall and in that context you have to understand this case is a little different than a lot of the cases that we've all been citing for this reason here remington went out and not only put out that their gun was not defective to numerous people less they did the other they said this was the most reliable trustworthy gun on the market they said that any number of things that we attached and it's included in the and the sixty minutes included in their response to the c m b c p s and i differ with with opposing counsel i think that you might be able to say i have a defective gun and we're just going to let him go out not say a word but when you go out and actively say this is the most reliable trustworthy gun in the world and you publish that everywhere to inundate the market with it that you have now taken an affirmative step and you've crossed a line your nail in a different world then where you don't have a fiduciary duty and i would cite the court to a case that we cited that i know is not exactly on on on all off market uses knowing full well that it caused cancer and that court did with this court should do they should find whoa that's a no no you crossed a line that fraudulent concealment you've crossed the line when you go out you don't need to necessarily tell mr string of the guns not defective have told everybody that has asked the guns not defective and we know what they said about the stringer case they actually replied in the sixty minutes piece and that's before the court where they replied with respect to this discussion could not or could not have malfunctioned that was after the recall the go back until i don't understand how the news reports help on the due diligence requirement because if there are reports as you have said over the place that there are problems with the gun right wouldn't that put the plaintiffs in this case on some sort of notice to do some sort of investigation especially when they're dealing with the incredibly tragic circumstances of the injury and death in this case great question i was about to go there too i think that a couple of things one is under the circumstances and there was due diligence on day one in all around the criminal matter it was investigated by the gold standard you know the crime lab of the state of mississippi mr stringer a power line worker and his son who's incarcerated in the families in the turmoil that you can imagine from has essentially losing two sons they obviously relied on the crime lab that doesn't work for the prosecution it i mean they did the crime lab in every case and every state issues e every single day i mean we've got to look at them as the gold standard and they issued a report saying that the gun was not malfunctioning unfortunately they didn't know the precise mechanisms that cause these guns they don't go off when you drop them that's not what makes them go off they go off when you turn the safety off or when you lift the bolt and various things that are all documented and they're set forth in the complaint so that's one thing you've got to look into the circumspectly we have the case williams i mean i'm sorry wilson versus retail credit and in that case they basically walked away from the due diligence they said you know what if you do due diligence and it's not going to reveal the underlying fraudulent concealment to the truth then then we can walk away from due diligence i would tell you here that the stringers due diligence w surrounded in that criminal action it was the focus of everybody were about to put a young man in jail under these circumstances and the prosecutor everyone looked at that issue hard and so there's your due diligence then you go down the line a mystery or says ok you know what didn't happen the way and and goes down the line he has his ear to the ground and what is the fire i doubt from somebody you know what these guns do go off the way your son does and he does what anybody would do he goes on the internet candidly i'm a hunter i have guns i don't go and go to the google sites every day or ever to look for this i know about this because i'm involved in this case and i think that's the truth for motor you say to their source in that they're hearing for the st time here today that the statute of limitations ought to be told because of the x minority i would tell you that st it was raised in the lower court and i think that if you read all of the pleadings in this case it says constantly the minors act minors act minors i couldn't do this a young you know fifteen year old she's not wrong one word of it in the blue brief not one word about  between zach and the other plaintiffs but nothing about this polling for minors under mississippi law not one word i would i don't dispute that but what i would say is we do try to try to draw the distinction between zach and the others and i would also say this that's a legal protection i mean he's a minor under the law there's a statute that protects him and the fact that that i'm a bad lawyer what can i say it's not in the brief i hear you but i think that we got there in enough ways and it's a statute it's like saying guess what you didn't cite this case so now you can't rely on it that would be crazy what if i didn't cite the prime case that went for me you would raise e j you know my law clerk found this and here it is and i think that's where it is and i expired you've got a couple of sentences to conclude yes or again i think that this case is different because the due diligence was applied early on and later and because rimington so flooded the market with positive things about this gun that