fifteen minutes per side mr brennan for the appellant you may proceed may please the court counsel my name is ken brennan i represent the plaintiff's appellant mar wall i thank the court for the opportunity to present oral argument and in particular i think the court for permitting me to present oral argument via telephone i know this is not ideal way to present an argument but circumstances made it difficult for me to appear in person if the court cannot for some reason hear me i would ask that she just let me know and i'll try and adjust my volume doing fine so far wonderful just my volume on this and i understand that the court i'm sure has has read the briefs and seen the record and so i want to jump right into the substance beginning by reading a portion of the district court's opinion before i get to that i want to just briefly for context explained up we're on appeal in order granting the defendant summary judgment in a product liability case on the basis of the anticipated life provision of the tennessee statute of repose the district court in granting summary judgment wrote in part this court views the result in this case as manifestly unjust through no fault of her own wall is left with an essentially incurable degenerative condition for which she has no recourse because tennessee extinguished her claim against g e before she could have discovered them now plaintiffs is well aware that the court may not find in her favor based on sympathy to her situation she's not asking the court to do that however the court may by application of hio choice of law rules find that the ohio state court would not reach this manifestly and just results because ohio law is different from tennessee law with respect to when a statute of repose can extinguish a vested claim this is judge bogs to cut to the chase here you're quite right that for you to have a shot here you need to get potential at least into ohio choice of law rules and how do you get around the fact that the very order that sets up direct filing here the judge pollster says in paragraph six the fact that the cases filed directly will have no impact on the choice of law to be applied my answer to that question your honor is that is that when judge poster says that filing directly will have no impact on the choice of law to be applied he means exactly that it doesn't change the general rule that the law of the the choice of law or rules of the transfer or court shall apply in other words   act of direct filing is the only thing that gives you an angle on ohio or a claim that ohio is the transfer or court normally you would file in tennessee judge pollster's order allowing direct filing gives you an opportunity to file it in ohio and he says that should not have any effect on the choice of law if you filed in tennessee you could possibly use ohio choice of law or could you if i filed in tennessee i could not have used ohio choice of law rules however i could have filed in new jersey without question i probably could have filed in many if not most districts across the united states because the defendants in this case are operate on a and i mean you could have filed and then we would have a we or some other court would have a whole series of other issues but that's not what we have before us let me ask you the second thing is that putting aside judge pollsters order looking at it generically your position means that when the multiplied district litigation annel assigns a case to some particular district it would mean that they're opening new substantive law that wouldn't be available that they put it in some other  district is that correct well two points on that your honor number one is that most of the time the choice of law rules of the various states are going to point to the same substantive law so this is not a situation where we're going to be dealing with well strike that most of the time the choice of law rules are going to point to the same substantive law whatever states are dealing with this case happens to be  an exception to that rule so the problem is not as big if you will as you're raising second and more importantly your honor i think that the district court the m t l court when creating it direct filing order if it chooses to do so and we acknowledge that direct filing orders benefit everyone the court can enter in order not simply saying that we're not you know direct filing does not have any impact on cho on the choice of law or rules that will apply but rather the court could enter an order saying for example you must designate in your complaint the venue in which you certainly would have filed this suit and that and that will be considered the transfer or court for choice of law purposes  pression you're sort of answering my second question which i haven't asked yet but you didn't answer the first question which was not what judge pollster did but what the multi district litigation panel the judicial panel on multi dose preclude a geisha your theory does make it that in their consideration they should be considering substantive law because if they send it to ohio as opposed to some other state it very well could have different choice of law rules you're saying it isn't too often but that's you know that's a academic thing that we could argue but certainly in principle it would make that difference would it not my answer to that question is that when the when the joint panel on multi day strict litigation creates an m d l it certainly does not require a district court judge to authorize direct filing and that's the least that's my second question regarding to still want you to answer the first question that it opens this up when it's not open before right and that therefore you would think that if that is the law the j p l should be considering that and i did it sits in my courtroom or courthouse by by chance because our chief judge was the chair of that they don't do that right so they don't do that and i assure you judge i'm not trying to be obtuse i'm trying to answer now i so then i do want to get to the second question which is ok assuming that your theory is good and the judicial panel has sent it to any particular court then that court which you normally think of as being there for procedural issues if it decides to allow direct filing the way the judge pollster did your theory would mean that that court is now making a very important substantive decision is that fair only only if the district court sort of does what i would say half of what it ought to do only if the court authorizes direct filing without addressing the second half of this problem this issue which comes up in the unusual case and i think it is the unusual case that a n m d l case is sent back to our district court for in this case not sent back but sent to a just the quote we'll call it  ought to address the issue that we're talking about because fair ends would seem to to require the result that that the plaintiff is asking for and so when you say he ought to have done something you say that paragraph six isn't what he quote ought to have done and given to me again you are giving me a reasonable statement i don't just don't think i got all of it when you effectively you were saying that what he should have done was to say something can you reiterate that i think what the what the court could have done was that i am authorizing direct filing however as a condition of taking advantage of this direct filing procedure the plaintiffs shall designate the district court in which he or she would have filed this action but for the direct filing order ok and at least an abscess in this case at least it appears that would have been tennessee that is given your other filings later on you figured out you had a problem but at that time you would have designated ten would you not you know it's hard to decide it's hard to disagree with that statement because you made various filings all of which said venue is proper in tennessee and my response to that would be your honor that yes venue is proper in tennessee but venue is also proper and certainly as i said before in new jersey venue would also be proper i think and this issue was never addressed but i think  would also be proper in ohio and just to be clear that then if the judge had done that and said you shall designate the court that you would have filed in would that then be binding under your transfer or transferee theory that still really is a transfer from ohio isn't it does that does that get the defendant through the judge off the hook the answer to that question is i think yes it would get the defendant and the judge quote off the hook because the i think that the parties can agree think i understand what you're saying your honor and i and i think the best answer i can give is twofold number one i think when the district court makes the decision to authorize direct filing and again i understand how convenient that is we're involved in a lot of these m d s that the district court needs to needs to sort of complete the process and address to address how to choice of law issues are going to be dealt with  and again i understand the rationale underlying fairness but i think part of the rationale underlying ferrand's was that it's not a good use of judicial resources to to argue about frankly what we're arguing about in this case right now about where the case should proceed and in this case what choice of law rules should govern and i and the reply to something quickly give me the second point you separate your reasons give me the second her doctor in tennessee and he ordered a scan for intimacy and she was administered and if the approved contrast agent in tennessee as a result four years later alleges that she developed a disease called in itself as a result of that administration she was diagnosed in tennessee she was treated in tennessee she's never been to ohio she's never been to new jersey this is a tennessee case a very thoughtful district judge who didn't particularly particularly care for the result was there to decide the case on the facts in the evidence and the law and she told us during oral argument which is typical of judge stronger that she would rule with integrity and she did and she got it right she called balls and strikes and she called three strikes unfortunately for the plaintiff in this case she is fact i found it remarkable that during plaintiff's argument that he suggested that plaintiff should designate he proposed a a different rule that plaintiff should designate the originating state said there was no finding there's nothing in the record to indicate that venue was ever appropriate in ohio in the northern district of ohio but for the direct filing order which permitted cases to be found  and the direct filing the water itself absolutely said these cases may be filed here for the convenience of the parties but it is not to establish be in your jurisdiction there was never venue play id never been us stablished in the northern district of ohio in fact judge pollsters transfer order indicates that the case is being transferred to the appropriate venue the middle district of tennessee and what i was  leading up to a minute ago about what's in the complaint plaintiff's played that venue it would have been appropriate in the middle district of tennessee that's impaired  all the defendants were present in doing business in tennessee the defendants would have expected that there are consequences within the state of tennessee that its acts would have consequences that the court has jurisdiction over the defendants by virtue of the tennessee constitution and so that this is a tennessee case and and so the question is what choice of law issues apply and i must applied the choice of law analysis of the state in which the indio was sitting the leading the first case i think was the vioxx case out of the out of louisiana and in vioxx the court said this is odd this would be an odd duty that we would have to apply our own choice of law analysis but the court ultimately concluded that louisiana that the substantive law of the state of injury would occur  and i would suggest to you that the trend is otherwise the last four cases that have been decided said that in order to give effect to ferrand's in van dusen and atlantica murmuring that wasn't mentioned during an argument which recognized an exception to the mechanical rule stated by ferrand's in van dusen that the law of the originating state should be the state in which to apply the that the plaintiff wanted to get a right and so filed the case in texas ultimately transferred to virginia atlantic marine holds no you can't you can't get out of virginia choice of laws by filing in texas the form selection to go through the transfer process the conditional transfer orders and the tagalong actions and all that kind of thing the judicial efficiency that was promoted by the direct filing order i would have a different different consequence then a form selection clause it permitted the case to be filed in the northern district of ohio but no but back like in atlantic murray never acknowledged that that would be an appropriate venue and in fact i'm sorry you're on with respect to venue you'd said something earlier i thought about a good poster saying the venue wasn't proper in ohio i'm not sure if i heard that right were you referring to the transfer order to tennessee in which it says the parties of stipulated in jointly asked the court to transfer this case to the district court of proper he never found that alhaja was an improper he simply found that tennessee was the correct bean and i assume that he would have kept it since since lexicon had been waived in the case if he wanted to keep it he could have kept opened with judge stronger so manifestly unjust language and she did like the result but she did not decide it based upon the result of the tennessee legislature that creating an unjust result here yes your honor and i would statute has been appealed by this court time after time after time it's been upheld by the tennessee courts time after time after time many judges have said we don't really like it but it is what it is it's not in constitutional it's the province of the legislature they had reasons to decide what they decided in this court case gomery versus wyatt which is cited in the brief there's an extensive discussion of the tennessee statute and a string of citations where it's been appealed over and over and over again in fact we know of no case in which any state court has refused to apply the statute based upon the public policy argument that spain owned in section ninety of the restatement in which is the argument that plaintiff makes in this case and in fact there is no case in ohio where ohio has invalidated another state statute of repose and it's repugnant to their public policy and i would note that ohio d the the the other thing that i would observe is that the ohio appeals court in jernigan which is in our brief decided a case and applied the tennessee statute to propose applying tennessee substantive law they had the opportunity to invalidate at the end if they had wanted to and they refused to do that so so this case is is not close i respect my opposing counsel's very creative and noble arguments but i would suggest to you that the best view the best procedure in this developing area about what choice of law should be applied in direct found cases in the indio are the four recent cases as the law developed the other side in our brief that's the yasmin case out of illinois the of vandy a case which is a heart medication out of pennsylvania watson the pain patch case in which the court referred to direct filing in the in the as an artificial form in the same case which was a urinary tract implant case just decided this year cases and your honors will have i believe have the first opportunity to pass on this there is a bit of a procedural distinction between this case in the other cases in those district court cases your honor those are the indian courts applying choice of law analysis of the originating state the state where the drug was prescribed the state of the injury occurred in this case it's procedurally a little different in that this is the first district judge after transfer of in the of a direct found m d o case who has reached this issue and she got it r she got it right it's a tennessee case tenn choice of laws should apply in fact it was pled as a tennessee case the statute or oppose was in our answer and   that were to be tried or settled is the case maybe one was tried and the other three settled in fact most of the cases in this  this this decision by judge progress absolutely consistent with what he did a very thoughtful district judge who wrote a very good opinion she got it right and we would urge this court to affirm the summary judgment i have forty five seconds left i'd be glad to answer any questions thank you your honor for hearing me it's a pleasure to be before you mr brennan you have three minutes for rebuttal very good thank you your honor so i want to make a couple of points in response to the arguments made by counsel for g e counsel referred  to the correct venue and the originating venue a few times during his argument and i think that misunderstands the venue statutes or misstates the concept of of the district court of proper venue he really should have said a district court a proper venue well i think there's no there's no question about that your honor i mean i don't i don't think that even g e would argue that e could not challenge venue in ohio the fact of the of the direct filing maps that they could not challenge the venue in ohio is not stated in that order i don't think so jim looking at page two of the april one two thousand and eight direct filing order notwithstanding the provisions of case management order number three this is paragraph four of the order i'm quoting defendants will not challenge the venue of any action file directly in ohio for purposes of pretrial proceedings and then it says upon the completion the court will transfer the case to a district court of proper venue but it but as i read it it said the they weren't acquiescing they simply weren't allowed to challenge venue in ohio in the trance i would suggest an answer to your question your honor that they were not permitted to challenge the venue for the purposes of pretrial procedure which is why the case was before judge poster there was certainly nothing that would have prevented them from asking for a fourteen zero six transfer rather than a zero for transfer on the grounds that venue was going to challenge is a later time is really your point they could have challenge it at the time it was transferred to tennessee right but that's later than the direct filing ok go ahead anything else and finally i got looks like i have only a few seconds to go i just want to quickly make the point that the journey in case which was cited by the defendant was a case in which the cause of the ohio case was a case in which the cause of action was in kohei it had not yet vested at the time that the that it was extinguished and that is the fundamental difference between ohio and tennessee law on the question of ohio does not have a case that refuses to apply some one statute of repose on grounds of public policy that is you've made you've made an argument a decent argument that it would be against the public policy but is there any case that holds that so far no case that i'm aware of that holds that ohio public policy would prob no thank you counsel your time's expired mr brown and we do appreciate your getting up early in