this was a business related tort case seeking damages to property against eight individually named defendants let me tell you how i see this case maybe  be a portion at that point every defendant would be pointing the finger at every other defendant and each would need a separate lawyer as a matter of fact it did separate lawyers during discovery because the first time you took the first the funds deposition of course the other lawyers are going to be there also because they're concerned about apportionment my my my thought is that specially in a case like this of c activity in one place just one decision made and the and the and the farce that would result in a bifurcated trial of the sort i'm talking about what with each defendant party is the same for me applies here all right thank you your honor i understand your concern i want to address a couple of things before i go to the bifurcation issue first i don't believe this was a concerted action but i'll get to that in a little bit and also we have of course we're acutely aware that there is always the possibility that people might point the finger at each other and that could have happened in our trial  a conflict of interest of you when the case begins if you use apportionment in terms of one lawyer representing everybody well that the reason that we were able to represent all the defendants in the  trial was because none of the defendants believed that any of them did anything wrong that has been their position since the beginning of this case that they all did what they were supposed to do in terms of decision making process and further that they didn't cause the damages that are alleged in this case so i don't believe that apportionment would end up in a conflict free for all in this case because they believe that none of them did nothing wrong so i i  think that key here is that the apportionment ruling was driving the strategy of this case that's why the f d i c and we wanted the apportionment ruling prior to the trial even beginning if the court had ruled that apportionment did apply i don't know that it would have been that everybody would have pointed the fingers at everybody but what i do think is that you would have had a dramatically different trial you would have had one to push statutes goal and point is to avoid putting deep pockets on the hook for the whole thing and there are deep pockets here and perhaps they would have only gone after those deep pockets we don't know but what we do know is that it would dramatically change the trial so i'd like to address if you don't mind your concerted action point because i know that the trial court and the f b i see argued that this is a concerted action this is not a concerted action a concerted action was the decision that they made on these long lines but this case per the loudermilk supreme court decision is not about the decision itself this case is about the process that each of the individual defendants used to prepare themselves for the decision and each one of those individual defendants the c e o the loan officer the outside directors the head the loan committee had a different process and a different way that they used to prepare themselves and the other members of the committee for the situation that they ultimately made that was not concerted that was individual that's what the loudermilk supreme court case said that they had to focus on the decision itself it's protected business judgment rule protects it the process is what we focus what page of the opinion talks about the decision making process and an what you do it's not about the decision but it's about the process there's and that is not a direct quote your honor but the  committee they are present with the exchange of ideas and views and not just group decision making it it seems to me is concerted because your individual preparation you may have missed something so you you you looked at john doe tell tell me what you thought i understood and so first i think  upon one of the logical and consistent sees if it's a concerted action how are the people who weren't there solely liable just because they weren't there how can that be a concerted action but putting that aside for the moment i'd like to describe what was in the record at trial about how these decisions were made a loan officer would get in a loan that loan officer who was on the hook who was one of the defendants would read through the documents read through whatever was submitted by the borrowers then that loan officer would take that recommend that loan to the c e o and the other members of the inside directors who were also officers who were also defendants then after they would have a discussion then they would take that to the chair of the loan committee buddy aldridge who was also a defendant they would discuss it with him and then after that it would be submitted to the loan committee where the remainder of the outside directors would listen to the presentation  and listen to the recommendations today made and then consider this situation themselves magic questions and i ask all kinds of questions which was also in the record got it all out on the table they were all out on the table and they were also different deciduous part of the process all part of the process in the in the process also includes these the members of the one committee receiving the information the loan applications before the meeting right so absolutely and all i'm sorry and they have the right to veto any individual could veto well that as a practice that was not done before that if they if they weren't able to come to the meeting and they'd seen a loan application they thought was not a good one they could say we should do this right it's a matter of practice that but as a as a i mean the process allowed them to do that the process actually did not there was nothing in the loan committee in the l was submitted to them is that not in the record that root the practice at this recommendation and the documents supposing it were submitted to all of the directors before the meeting the one director who was found liable for one of the directors who was from no it's the short answer it is true that they generally did get evidence prior to the long committee meeting but not in all cases in fact buddy al was deemed liable even though he made something like one hundred sixty of one hundred sixty two loans during the time he was dean liable for being absent for one of these loans he got his information when he came to the meeting itself he didn't i still have to fax of things those were probably the result of concerted action the discussions amongst the directors discussion among some of the inside directors not all of them and of course the documents are only part of the picture that the board that the committee uses to make their decision they rely on the discussions and the viewpoints of their other directors in the meeting they just and in the end are we really going to hold people who aren't able to make one meeting we have to go see gave the example of somebody whose wife died the day before meeting they're still liable if they don't show up for the meeting the next day that can't be the law that's not what the cor question the georgia supreme court could answer that question but i don't think the georgia supreme court needs to again there are plenty of cases where individual defendants have been claimed business related torts for damage to property where understand your position good morning and thank you may please the court i'll turn immediately to the last question that was posed whether this should be certified to the georgia supreme court and it's our position that that's not necessary the georgia courts have already spoken about the application of this particular statute and every appellate court decision to consider the language injury to person or property has held that it's limited to ten jubal personal property and those those decisions arose in two contexts one that language appears in two different statutes it appears in the notice and to live them statute that requires notice before litigation in cases for money damages for injuries to person or property and it appears in the apportionment statute and the georgia courts the only courts to consider the language have all held that it applies only to cases involving injury to person or tangible personal property it began with the neely decision which we cited that was only that was limited only to looking at injury to person or property in the notice statutes but the rationale was identical that it was a in derogation of common law at common law injury to a person or property was intended to be limited to tangible property and that by using that language the statute was to be strictly construed to apply only to injury to person or property then in city of atlanta versus beneteau or the georgia court of appeals again consider the issue both with regard to notice and to lie to him but specifically with regard to this apportionment statute fifty one twelve thirty three and case involved contract damages which is different from that case with all due respect your honor it involved two different types of damages and the question isn't whether it's come track damages it whether apportionment is required for any case of injury to personal property and it was in the apportionment statute doesn't talk towards torts or contracts statute applies only to injury to personal property involve contract damages respectfully honor i have to disagree for two reasons that was a consolidated appeal of multiple cases and there were claims against the city of atlanta and claims against that the contractor for the city of atlanta and that question of the economic loss rule was with regard to the claims brought against the contractor for the city of atlanta in a separate part of that opinion when there was a an objection by one of the parties who had cross appealed for contributions made the city of atlanta had cross appealed against other parties seeking contribution for the city's damages and in that case the court held and the argument that was offered to dismiss that was that contribution wouldn't live because of the apportionment statute and the court was limited strictly to the issue of whether that apportionment statute defeated the contribution and it said no because it is limited to person or property and then it referred back to its earlier discussion about the notice him but the city of atlanta case did not limit its analysis to the economic loss rule there is again a separate portion of the opinion that dealt with whether the apportionment statute applied to defeat contribution claims and the court explicitly held it does not because as we explained in the earlier context and as it applies here injury to personal property is limited to tangible personal property that's explicit in city of atlanta this court then in alexander contracting less than a year ago reached the same conclusion it applied city of atlanta and that case was not in our brief originally it was in the twenty eight j letter which we recently submitted in which a panel of this court admittedly a and unreported decision that is not binding on this panel but it should be persuasive all authority that the court was presented with the identical issue here a a case of negligence that lead to economic damages the district court declined to instruct on apportionment because the district court held that it was limited to person or property this court  affirmed the decision of the district court not to instruct on apportionment in reliance on the city of atlanta case citing to that portion of the decision in which the court the georgia court of appeals held that it was limited to personal property i have in the context of the notice and to lie to him which is the same statutory language in the same analysis of derogation of common law i yesterday in your library downstairs i ran across other decisions that come to the same conclusion i don't cite them here but i think that neely and the analysis in city of atlanta on both and allied him and on the apportionment statute and its impact on contribution are clear about the limitation the eighth circuit in that miller vs pine bluff case that we cited about an arkansas statute that was a similar statute and in that case the court of appeals understood that the legislature by using that language injury to person or property hadn't demonstrated the necessary intent to stray from that limitation in the common law even if there was a derogation by requiring apportionment that limitation was to be read in that strict sense and as i say no vs pine bluff is consistent with neely city of atlanta and alexander contracting other issues or exceed any other principles of statutory construction also support our interpretation what the directors in this case say is that every tort is an injury to personal property they say that repeatedly in their briefs yet in the immediately preceding statutory provision fifty one twelve thirty two the georgia legislature left intact contribution in the case of joint and several liability and if it were correct that a portion of a required in every case then that would simply be surplusage and it would be rendered superfluous and that's not what george's legislature intended and principles of statutory construction should recognize the legislature's intent  it seems to me that is your strongest argument well thank you your honor we believe that it's compelling as well it was not the focus of those other cases i cited and persuade me that what the judges wrangle would do clear your honor we would never substitute our judgment for yours as to whether apportionment is required i would just say that georgia courts have spoken on the issue and it's it's generally understood that this co can take guidance from the decisions of the lower courts in predicting what the supreme court would say and they offer no contrary cases the cases they've got that they bypass any  analysis they do offer three cases where the apportionment statute was apparently applied the the also in bird case the remand co cases in none of those cases in none of them did the parties appear to contest injury to person or property or to the court ever consider that language in its intended limitation we'd also just note that as the loudermilk decision said and as the questioning elicited answers from my brother my friend the the we don't believe a lot of milk case says that the directors are not acting in concert here but we also know that loudermilk itself reflected that even though it discusses the director's duties under the negligent standard of care it says but it's distinct from ordinary negligence as that term is used it recognizes what bank directors do and banker actors in this case were approving alone collectively and that's why we think it it's axiomatic that the jury can't be left to speculate as to apportionment the jury can't just pick and choose there has to be some evidence and as the cases consistently say got i t portion of stage the jury would be listening to the various defendants yes that's right you're on it everybody else and the post and decision which we cited at which is about extended damages in the case of a  evidence for a portion of the bird case for that proposition i believe it does your honor and but i cite the post in case because the post in case favorably embraces the restatement of torts which is explicit about the the duties excuse me the burdens and for thirty three b of restatements second which is cited by the post and decision here kid to a contribution in a way which is where the birds yes but it explicitly explains that it is the defendant's burden to come forward  have exactly your honor and i would just note that the couch vs red roof ins case the first one that discusses fifty one twelve thirty three as a case in derogation common law approvingly cites paulson and didn't take any issue with that discussion post an impulse in itself said that we're we're looking to traditional notions of tort law and we'd suggest there's nothing in fifty one twelve thirty three that explicitly or implicitly changes the burden of proof on the defendants regarding apportionment if i can i'd now like to turn to the merits argument that is you have cited the post and  in excluding testimony or evidence regarding broader economic events as an intervening cause that in this case it's presented by the defendants it didn't come up during the the opening argument but their briefs are make it clear that they want to present the abstract questions of what is appropriate for a jury under questions of proximate law and they nor the question before this court which is whether this district judge abused discretion his discretion in excluding that testimony and it's our position that it's undeniable that it was a proper exercise of discretion because the defendants with grue those issues explicitly with through them the district judge entered an order saying i will preclude all evidence relating to your affirmative defense of intervening cause as well as other forms of defenses and then when despite that and i'll just if i can i want to quickly walk through that they answered in their answer document thirty one with an affirmative defense that there was an intervening cause of global un forseeable economic events then we went through discovery and the f d i c after discovery after the rule twenty six disclosures there was no damages expert the expert talked about and then forseeable crisis the f d i c it doc at one forty six move for summary judgment and said there are no undisputed facts here regarding broader economic causes as an intervening event at one fourteen these directors responded they did not oppose summary judgment they responded by withdrawing their firm of defenses and then same but will reserve it all for trial which is not an appropriate response to summary judgment i think everybody would like to say will will oppose summary judgment by reserving for trial and the f d i c f reply and said wait a minute that's a docket one fourteen excuse me one seventeen the f d i c said wait a minute there are no disputed facts presented they can't declare the issue moot we're entitled to summary judgment we're not only file their search reply it's not in their appendix we've added it to the supplemental appendix in their server reply they they explained as we were volunteering to give plaintive all of its requested relief by withdrawing the challenge defendants from this case the defendants expressly reserved their rights regarding the presentation of evidence on all remaining issues that's at page three of one thousand nine hundred dash one at page four they've already said the movements the f d i c are already getting their requested relief at page three pain as plain as do not object to the court affirmed only striking the challenge defenses that the defendants have agreed to withdraw and the district docket one twenty three entered an order explicitly saying i'm going to exclude all evidence relating to your affirmative defenses they proposed to introduce it and the f u s e a dock at one thirty seven said that's governed by the prior order and on the merits they have no evidence that could get to a jury and at docket one forty four they responded with an abstract discussion of the law of proximate cause and mentioning their generalized evidence and never that in one forty four did they ever respond to the earlier order of the district judge so a docket one seventy five the district judge properly exercised his discretion to say my earlier order went unchallenged i'm going to enforce it and exclude that evidence so we respectfully submit that that that was a proper exercise of discretion and unless there are further questions we urge the court to affirm the decisions below thank you thank you  i'd like to address two points that the f d i c made first it's not true that it's defendants burden to put on the other defendants liability it is the case in the also in bird matter that it is defendant's burden if they're going to try to shift or argue that someone else who is a nonparty was a part of it i suggest it would be a part of that is that is not the georgia law there's never been a and held that they were not injured person the property he claims that that case involved more than contract bama jews can you comment on  defendants are parties to a contract where damages issued for that contract are on what the f t c seek and the same thing is true with neelie is it is not merely a contract damages correct they are seeking damages for country is there any in terms of the great recession we didn't wave our right to put on evidence about causation we waved one affirmative defense that isn't even an affirmative defense that's why we dropped it we were trying to streamline the case and