good morning they have lisa cord and lauren goldman on behalf of defendant philip morris i'd like to reserve five minutes of my time for a battle if the court would permit the most fundamental element of issue preclusion especially the type of offensive non mutual issue preclusion of the show in this case is that the identical issue was actually litigated and necessarily decided in the proponents favor in a prior case here's here's what i don't understand  has anything changed about the nature of the california law applicable here as to the question of whether and what caused this woman's cancer lung cancer i'm different you may be you may have blown something in the earlier trial by not emphasizing what you want to emphasize now but the issue was exactly the same i e was this woman's cancer caused  myers and negley came down two weeks before this case was tried i'm sorry myers and nagel either to the companion cases right california supreme court that make the explanation about the immunity period medical causation those decisions came down a couple of immune period out no it was not your honor it was given an instruction that in assessing this is books claims for fraud actually let me just pull out the exact instruction it said you may not find defendant liable on plaintiff's claims of defective product negligence or fraud based upon conduct between january one thousand nine hundred eighty eight and december thirty one thousand nine hundred ninety seven with that conveyed it to the jury was that acts of negligence fraud and product de facto during that time could not be considered it did not convey to the jury the thing that we think should have been litigated in jodi oh ok yes i think you're right about that but i guess my problem with your argument is this the issue as i see it was medical causation you now have a new argument that you'd like to advance or that you wish you had advanced at the trial to defeat the pla showing a medical causation but it was available to you as just bers on was emphasizing there was no change in the wall so it seems to me you're sort of stuck by the california cases that say even with respect issue preclusion not just claim preclusion but even with respect to issue preclusion if the issue is teed up and you merely have better arguments or better facts to to support your arguments with respect to a particular issue if you don't raise them you're still bound you know what those cases say is that if you have new facts that added to the burden that a plaintiff in one of these suits house to show us to meet in order to prove medical causation right now what we're saying is that there is a new separate element of the case and you separate issue you know it's a part of medical causation and it's and you just you know you but your client simply failed to raise it and it seems to me you're the california fires are pretty clear that that failure to raise that argument in support of a defense to medical causation you're you're just you're still bad well there's two problems with that  the first problem with that is that we disagree with the court's characterization of this as simply a new wrinkle or a new theory this is a new element she had to prove that her injuries were caused by smoking outside the the immunity period if she had actually they all should have t the identical issue in the early theory was asked whether plaintiff's injury was caused by a failure of the defendant adequately to warn her about the dangers of smoking cigarettes before july one thousand nine hundred sixty nine and they said yes  that you were talking about but let me just answer this question first it's a separate issue because the theory on the printing nine hundred sixty nine claims is that philip morris is conduct before nine hundred sixty nine it's acts of a fraud and failure to warn and concealment theory which would have made her a liable in this case as well all cigarette she was smoking during that period right your honor the immunity period when unity statute the repeal statute was construed in my as an english set up a very unusual situation in american law what they constituted no if your essential argument that they were backing out the usual causation standard and other words ordinarily under california law a cause has to be a substantial factor right if the failure to warn her about the dangers of smoking cigarettes before july one thousand sixty nine was a substantial factor when you would be liable under ordinary california law you seem to be saying that the that this new statute the immune parian says that substantial factor is no longer the standard that is that the he also have to have nothing having happened during the immune perry and even if there was a of that smoking caused her injury our position is that that's not what she had to show what she had to show with the smoking from one nine hundred fifty six to one nine hundred eighty eight caused her injury so that's the first part the second part  her death yes we don't distinguish between israel twenty causation in personal injury cases and causation in death cases because the issue and i can i can be injured and have an injury yet i can die from a cause not attributable to via injuries or for example if i have cancer of the lung i can die of a heart attack and unless they're shown to be related there's no cause that can be in she died as a result of the cancer that was found earlier we are a direct assistance in this between medical causation and wrongful death and medical causation and personal injury was not at issue here we never agreed that they had met their burden of proving pre immunity period medical causation but your honor the reason why and we would take the position in fact that the ordinary rules of substantial factor do not apply here that what plaintiff had to show is that if you take the immunity period smoking out of the equation entirely she would not have gotten sick and that's the opinion that her expert could not catch my hypothetical i e no one's trying to hold you liable for that period we don't care who she was smoking during that period why doesn't that wash the problem out because the issue here is that she had the plaintiff had to show that our conduct saying that he that what you did before nine hundred sixty nine caused her injury because what she had to prove to the first jury under the instructions in the verdict form that were given in that case was that humor that that that print nine hundred sixty nine caused her whole smoking history she was required to prove that they caused her smoking history from one nine hundred fifty six to one nine hundred eighty eight and that that period of her smoking us history w understanding is that ordinary california causation law would say maybe her her injury was caused by two things i e the failure to mourn her before one thousand nine hundred sixty nine and her continued smoking through they found that it was caused by the her and your activity before nine hundred sixty nine and they have also been cause as a second cause may have been her continued smoking but that is is a second somewhat unique to tobacco cases and as best as this is another mass towards the theory here was that the precincts that the nine hundred sixty nine date the magic of that was that there is a federal preemption of certain claims after nine hundred sixty nine so the theory is that the claims that were preempted before nine hundred sixty nine that the conduct on those claims that you didn't tell me cigarettes cause cancer before nine hundred sixty nine because you didn't tell me that i started smoking in one nine hundred fifty six there was never any claim that the smoking from fifty six to sixty nine caused the cancer there was never any claim that the smoking from fifty six to eighty eight caused the cancer what the theory was was that because you did you failed to tell me before nine hundred sixty nine that smoking issue encompasses the manufacture and sale of cigarettes and what myers and nagler make very clear is that there are two kinds of conduct that are relevant for immunity one kind of conduct is the tort conduct that we're talking about product the fact arkema let's go back to the beginning that wrinkle as i put it that miers and there you go at it why isn't that just a legal theory that relates to the issue of medical causation that you either raise or you're not what's going to be bound by whatever the outcome of that first our position is that it's not a new wrinkle because non immunity period medical causation is actually an element of her claim under the very clear language of nadler which says that where a fraud claim is based in part at least undefended conduct in manufacturing and distributing  to do something that no court that we're aware of in california or the california federal courts has ever done none of those cases involve different parties first of all so she cites five cases as pages thirty seven and thirty eight of her brief three of those cases are race judicata claim p cases that's work as such and price that leaves specific mutual and direction network those two cases both involve the same parties and what the he was trying to do in the second case it's a wait wait i know this very issue was litigated and decided against me in the first case but now i got a new theory are now i've got a new piece of evidence and fact in direct t v it was new evidence that the person wanted to use this would be mutual in the sense that if you had raised this issue in the in the first trial beyond those that are cited in the brief why is it why does it matter if it's non mutual off ounce of because that is the doctrine of non mutual offensive issue preclusion of telling a party other third party coming in and saying probably in poverty and therefore it would have been mutual that is certainly not an argument that the plaintiff has ever made in this case and i don't believe that it is correct i believe this is offensive not mutual issue preclusion but in any case our position is that this was not a new wrinkle as to which were making a new legal argument our position is that this was a separate issue in the case plaintiff has always taken the position that this was a separate issue in the case that certainly the way she describes it in her briefs and that we had the right to litigate that she case it returned a verdict because the mother had was injured right yes all right so it had to determine in making that decision that the smoking caused the and isn't that the same thing that has to be proved in that you all actually agree to in the record in this case that the smoking caused the cancer and the cancer caused the death into a greater than an honor we agreed to that for the purpose in the sense that we are not contesting that there was a separate requirement that her cancer had to have caused her death what we are saying though is why did the president will causation it's it's not in the unity period medical causation what we're saying is that the new unity statute and the way in which that statute was repealed create a new element that what you're reading meyer's to say that but it seemed more more directly to say that it was the contract during that period no myers makes extremely clear about six times in the opinion that the conduct in question is the sale of cigarettes so it says that while the immunity statute was in effect no tortious liability attached to tobacco companies production and distribution of tobacco products a tobacco products that it would be retroactive to have repeal govern product liability suits against tobacco companies for supplying tobacco products to smokers but when the first jury was told that defective product negligence or something else was not was back now why is it that you say that's not the production of tobacco why isn't the production of tobacco because it's tortious conduct is the separate question it wasn't told that the sale of cigarettes prevailed in her own personal injury action the heirs have an independent action and the wrongful death plaintiff has to prove that the defendant's wrongful act or neglect caused the deceased and steph in those circumstances under brown versus rah rahman the heir may use collateral estoppel on the issue of liability so my look at what happened in betty blocks case as counsel noted the myers case came down two weeks before that case was tried for that reason and this is this is such a part from some of the earlier cases the jury was properly instructed in accordance with the myers to say asian that you may not find the defendant liable on plaintiff's claims for defective product negligence or fraud for any conduct or unit here i mean the jury was not given the proper instruction in this case because it should have been told that any smoking between what it were the years nineteen eighty eight and ninety eight and could not be the source of of liability and so therefore your expert would have been required to appalling ask the expert testified that if that he had only smoked during the tenure immunity period to a medical certainty she would not have gone cancer and that certainly has nothing to do with the relevant issue the relevant issue is d smoking between one nine hundred fifty six in one thousand nine hundred eighty eight if that had been the only period that she had smoked which she nonetheless of still developed her lung cancer and i think your expert said i i'm not able to say that he said that it would be re do if she had quit before nine eighty eight that her chances of getting cancer would have been reduced i did not say that she would have meyer wouldn't have got effective myers is to say that no actually it's your burden as the plaintiff to prove that your can't cure but you're the mother's cancer would have been caused solely by the spear the smoking pre nine hundred eighty eight and the jury was never asked to make not here so that's why don't i mean i'm with your opponent on that point i mean i'm on the less think you might have the better of the argument though on whether issue preclusion nonetheless applies because there was no change in the law right there absolutely was no change in fact the conclusion of the miers case specifically states that for the defendant's conduct outside of the immunity period the standard general for principles of california law apply and did not change there they they definitely change with respect to smoking cases after well for periods outside of the for their conduct outside of the immunity period in other words for the immunity period that will that immunity still applied for that ten year period before any of defendant's conduct outside the muni period california law remained as it had been and their liability was the same and so when the jury was instructed that the cause of injury is defined as something that must be a substantial factor in bringing about the injury that's exactly what they found the and they found it based on three separate grounds that that the defendants conduct outside of the immunity period was the cause and was a substantial factor of betty's cancer and then again there was no dispute that the cancer is what caused her death and that the cancer was one hundred percent caused by smoking and she only smoked phillip morris products  i think that the meiers decision makes it abundantly clear that the the issue does not revolve around when plaintiff used the cigarettes but rather it's the defendant's conduct and so we go back to the jury verdict and we found we got three as far as the medical causation i think it is absolutely subsumed in that jury's finding collateral stoppel goes to what with where there's an issue of all to make fact and the ultimate fact in this case is whether philip marshall's conduct outside community immunity  injury and i believe that and that's exactly what the jury found the defendant has has conceded that in order to prove that a product was a substantial factor the plaintiff has to show that the harm was caused by the product as opposed to something else defendant's tort tortious actions outside than your theory did cause harm and that is don't think you're meeting the issue at all i mean you can keep continue but i don't think this is responsive at all to the argument they're making and i think maybe you're just misreading myers  period has to be backed out because you know basically mrs bush should have known that continuing to smoke would harm her health right so what she needs to show is that all of the smoking she did up until nine hundred eighty eight that that would have been sufficient on its own to nonetheless cause the same medical condition that she developed and i just you're not going to make any progress arguing to us that somehow the jury did make that finding because it never was asked well the but i think the expert certainly did provide evidence that that was sufficient well more than sufficient to support that and there was no at that point there was three appeals and new trial motions and it was never raised this issue was never raised by philip morris and never attended to by them to just suggest that they needed a new trial because this hadn't been this issue hadn't been addressed or that the jury somehow the finding was not some soon within within that finding the statu and the original meaning the statute and their appeal strachan are talking about liability under existing causes of action i e negligence fraud and session and they're saying you can't be liable for liability on existing causes of action are backed out i met i guess i'm i'm not i mean this is a somewhat friendly question i don't understand the the dynamic either inning immunity trouble understanding why as i was saying before if the tobacco's coming from the moon no sense in asking and snow was trying to hold anybody liable for any thing for the for the think i think that the question that this court certified to myers is whether or not the conduct that predated the immunity statute was  and i don't think that it i don't think that it particularly added a specific new any kind of a new element to the the burden of a plaintiff to prove liability i think that the existing cause of action has always existed and generally and california law for products liability applied to now to health was just an awesome causation and substantial factor causation both of which the earlier jury was instructed on right right so you know i don't think that i don't think that myers created any new element for products liability case i think that i think that medical causation as the district court found was this is not a separate element but is actually part of of proximate cause ation and that there are certain there can be instances when there's a distinction and  case talks about this there there can be a distinction between what was anything in the earlier jury's instructions dependent on her continuing to smoke after one thousand nine hundred eighty dependent on her caused her injury pre nine hundred sixty nine they were and when they instructed that that meant that she we were told before that essentially they found that she  to base their finding on that right right and i think that as long as they they were properly they were instructed that they couldn't consider the ten year period and so whatever happened before after and so you know the jury verdict had had had three specific though they were i don't believe they were found that it had to be caused by smoking outside the me period they found that there so they could think couldn't could not consider defendant's conduct between during that period but the it was there was there was no dispute that that the smoking is what caused her cancer there were in other words o her that they had to find that her lung cancer was caused by smoking outside the immunity period before they could impose liability well her injury was long camp do you do you agree that that the statute as interpreted in my requires that the at smoking during the immune period was not any aspect of why her injury came about i don't think you're reading the statute that way i i think that that i think that the defendant is focusing on her conduct when did she smoke and i don't think that's what myers requires i think what meyer says is that you've got to look at the defendant's conduct well she's someone switch gears this morning and said that cigarettes but i keep getting i'm coming up on the fact that it's somebody who didn't have to be film iris right but but it was philip meyers and that's that's what she and that's what she used to end and you know i think that your case would be period the the actions of philip mars during this immune period are do not matter based on the findings that were made by the earlier jury  wouldn't matter who you cigarettes she was smoking because the problem is oh for purposes of the wrongful death case right well if you're smoking somebody else's cigarettes during the immune period still right the increase sixty nine finding that the p correct are you going to address the your issues on the cross yeah i wanted to to briefly touch on that your honor thank you i think what we have this is a case that has was obviously soley a damage case and we've got four separate issues in what four separate errors that all went to that damage issue and i think if you look at them cumulatively they all combined to create confusion for the jurors and and prejudice we've got the admission of irrelevant and in miscible evidence that betty recovered money for this based on the same facts that it was absolutely unnecessary for the jury to hear that it was irrelevant evidence there was no reason this is there was no overlap between the damages that betty got and the damages that jodi was seeking there was no reason for them to know that that was irrelevant it was in missile evidence it wasn't correct me if i'm wrong but it wasn't evidence it was just the judge at the outset of the case telling the jury right right as happened in the information that maybe that would be but and i thought and i both parties were able to argue that you know it was essentially you know that information that the jury was permitted to consider and was emphasized in  closing arguments that really was irrelevant and the trial counsel this trial that i just i mean if you were sitting on that jury would certainly want to know why you were just assigning damages i well i think that the jury is is needs  cases happen all but the what the judge also wanted to do and i think properly so is make clear for the jury that there are two separate sets of damages are only here to decide one of them absolutely and so so in that sense i understand why the judge's instinct was to tell the jury listen appropriate and necessary i think for the court to tell the jury you are not to award jodi any damages for mrs for betty's you know pain suffering for her illness for her medical expenses and also that that's not before you that's not an issue that you  pretty much what the judge said i would agree with you if the judge said listen members of the jury the mother already got twenty million dollars and all that money went to the daughter and so you know i mean that would be easy right right and so it wasn't a dollar figure but certainly saying she got money death for the for the for the mother injury for for the injury for the mothers the injured they've already know what you said they've already paid money and i know it was fifty cents right well they say they didn't have a number but but as we saw from stress it could have influenced them in various directions depending what they guessed about the actual judgment well the the thing that's curious about is when this distressed juror of this the juror came in and said i'd like to talk to the court and says something effect i don't know i don't know why we're here she already got her money you know that was exactly the concern that defense counsel at that plaintiff's counsel had expressed when they were talking about whether the jury should be told that there was money that had been paid and he said she's somebody's going to come in and say was what are we doing here sure we got her money and that's almost word for word what happened when the juror came in and said she was very you know upset about that and we add that to the other issues and it straight by the judge structure know it well it didn't get straightened out i mean the juror was allowed to remain the juror who was very uncomfortable about that situation and i believe very tainted and who had been dishonest this in this important point i think she had been dishonest and were dear it by not disclosing that she was uncomfortable because they did ask questions about it the way the judge read it was so she was really uncomfortable about was having to sit in the jury and because everybody even asked about this other thing it was a convenient thing to say right right everybody  asheed been asked and she didn't express and it was a convenient thing to say not necessarily because she actually believed well that the you know the the the point is that during if if if a juror is dishonest during war dear and i think the judge did make some kind of a statement to the effect that she felt she was dishonest and she hadn't said that before that's grounds right there for a new trial if we combine the fact that the jury was told that betty got money and irrelevant and they wanted to be found i mean i find it a little surprising that you really want a new trial you got a million dollars and you could get not less i'm surprising i mean that and well go ahead surprise that that you the wrongful death case so but and just very briefly just touching on plaintiffs can you defend this counsel's argument that jodi should have presented evidence either expressing what she thought the value of her loss was of bringing an just seemed a p r to me not to have really done her job which is why the jury was kind of upset well i think rationally in light of all kinds of study is about anchoring and so on and you have to give somebody a number well they were pretty they were precluded from presenting an expert witness i stand up with a lawyer could argued for an amount of money right yes definitely was some kind of a theory right here or you did argue for amount of money and talk about the fact it was me a very early thing it was like tens of millions of dollars the basics of the basis for the for the argument i think was that this was an exceptionally close and dependent relationship between mother and daughter and i think the plaintiff's theory was going to be that you know that this is the end it would have gone on for another twenty years joe he was forty basically she lost a third of her life time with her mother his mother would have lived another twenty years is what the what the stipulated fact was and so you know you know how how anybody puts a dollar value on a if it's you know per year per hugger or however you would you know lawyers that you have to do that because i think exactly what happened here the jury is what i were not supposed to speculate what are we supposed to do the california law doesn't really require doesn't allow  witness to give a i'm not talking about a witness i'm talking about a lawyer trying to make a specific argument to a jury about a specific amount of money which didn't happen here which is probably what the problem was well i think that you know to the extent that's a problem it doesn't relieve the the court of the other problems that were court created and defense council created we've got what we characterize as four serious issues related to damage that would have contributed to the jury's confusion or discomfort or inability to come to a number particularly counsels argument that said that that jodi had to come up with something that's of sort of come up with evidence that was she was probably plainly precluded from coming up with and i think that casts a lot of doubt as far as the jurors are concerned because suddenly they're thinking when she said she hasn't given you any amount of money you're reading that to mean jodi should have testified to amount of money as opposed to the lawyer should have given you an amount of money because jodi is includes the lawyer right and and that's certainly permissible and probably right well i mean i can't i can't speak to the strategy that was employed as far as closing argument but what i can do is ask the court to focus focus attention on the errors and determine whether the trial court made errors and whether any one of them or any combination i would think that that era did not include me the notion that jodi should have gotten up and stand and testify as opposed to should have included an amount of money i understand i understand your point your honor but that doesn't change the fact that the defense counsel incorrectly told the jury i mean told the jury that she could have done that and she couldn't but you could have done was that she could have testified to judge watts for what first question about whether this was just a wrinkle or a new piece of evidence it really wasn't and i think that if the court were to take that approach it would really create an exception with swallow the rule  litigation so we agree that if felt my side won the first case this book wouldn't have been able to bring us i guess we agree with that but if the court looks at these cases that say that they are that bar people from raising new evidence to defeat collateral stoppel it's always new evidence it's like all i was at the court may have other cases that i'm aware of i'm looking at the ones that are cited in the brief and i'm looking at the cases that are cited in those cases direct  shopping network the parties agreed that it was the same issues and that it was just new evidence that the non proponent the and the op conant of stoppel wanted to bring in evans versus ella tax again it was new evidence that the person wanted to bring in the sonorous case which we cited in our reply brief is pretty instructive on this the court says we know that there is some loose language in the cases of that defeating collateral how you can't defeat collateral estoppel with things that you could have raised in the first case but we want to make clear that where the doctrine of race should occur to is applied in a secondary aspect as a collateral estoppel rather than in the primary sense as a merger or bar the effect of the prior judgment is confined only to those issues in the second action which were actually litigated in the first of the court reaffirming right but just that depends on how you define the issue right and i think medical causation was the issue that was put before the jury and it just seems to me you had an argument a legal argument available to you that would have made more demanding the standard that the plaintiff needed to meet and you didn't make that argument and therefore the issue went to the jury in a watered down form and now your want to say oh but we've come up with a better argument your honor that we had made the first time and you don't get to do that it's really a very distinct issue your honor i don't think it is fair to characterize it as just a different wrinkle or a different legal argument the medical causation question that was put to this jury as judge main indicated was did the cigarettes cause the cancer did the cancer cause and and then subsequently did the cancer caused the death that was the only medical question and it wasn't really disputed that the cigarettes caused the cancer because she had a type of cancer that is pretty much only c smell let me put it in this may give you this hypothetical let's say that you try and negligence case to the jury and you don't raise an assumption of the risk defense right so that issue is never put before the jury you found liable i don't think in the second trial you get to litigate it all over again and say you know what because we didn't a sort of defense that was available to us we now want to basically have a second bite at the apple i think you're compelled to raise all of the arguments and defense you have in that first trial and if you don't and the  playing your slicing the claim by anding something that should have been in there the first trimester the claim that was litigated and you're calling it something new but in fact liable behavior or wrongful behavior but any behavior yes your honor we do read the statute that way we read it that way because meyer specifically said that the conduct at issue encompassed production and distribution supplying tobacco products so one way that this came up your honor just i know i'm totally out of time beyond out of time but one way that this came up was in the richards case which was litigated and decided during the immunity period but it was relied on by the california supreme court in miers the issue in richard's rich case and there was no tobacco company defendant but the the defendant the day the a specialist company wanted to do an empty chair of the fence and point the finger at the tobacco companies and have the jury assign fault to those tobacco companies not for any particular conduct but for selling cigarettes that contributed to the plaintiff's disease and the california court said no you can't do that because there's no liability on any theory with a couple of exceptions not relevant here for cigarettes sold during this period of time and so it hundred earlier plan of his race five issues on her cross appeal three of them are waived for the reasons we said in our briefs the other two are meritless the question before the jury here was not whether jodi was saddened or suffered emotional injury as a result of the loss of her mother it's undisputed that she did the jury certainly was within its power to find that she suffered no compensable damages under california law and in fact it didn't find that all the errors that plaintiff points to would have if the if they had actually had an effect on the jury it would have resulted in a zero where the jury awarded her a million dollars and it was certainly within its discretion and as the district court found to find that that was adequate compensation for the loss of support and services to somebody who was already established by an adult as an adult at that point in her life was married had a child there was nothing wrong with the way in which those issues were tried and this is just an attempt to go back i guess when they clear about the relief that we are seeking we are only seeking a new trial limited to the medical causation outside the immunity period issue if the court is inclined to reject that our appeal we request that the court affirm and that the case feel over thank you ana thank you