00:02 - Good morning everyone.

00:04 - We have a full house this morning.

00:07 - I'd like to welcome you to the second day of our spring

00:11 - 2026 oral argument session here in Philadelphia.

00:16 - As you may know, because I say it all the time, the Pennsylvania

00:20 - Supreme Court is the oldest appellate court in North America.

00:25 - Our roots date back to William Penn's provincial court of 1684,

00:30 - and the Supreme Court was formally established pursuant

00:34 - to the Pennsylvania Judiciary Act of 1722.

00:39 - In May of 2022,

00:41 - we celebrated our 300th anniversary with a special session in Old City Hall.

00:47 - Here in Philadelphia, we on this bench

00:50 - are very proud of our rich history.

00:53 - In 1996, 274 years

00:58 - after the establishment of our Supreme Court, Madam Justice Sandra

01:03 - Schultz Newman became the first woman ever elected to our Supreme Court.

01:09 - On September 9th, 2025,

01:13 - we gathered in this courtroom to bestow a very special and well-deserved

01:18 - honor upon Madam Justice Newman by renaming this historic courtroom

01:25 - the Madam Justice Sandra Schultz Newman Supreme Court courtroom.

01:30 - Justice Newman passed away on February

01:34 - 2nd last month at the age of 87.

01:38 - Justice Newman was

01:40 - an inspiration to me and to countless

01:43 - other women in the judiciary and in the legal profession.

01:48 - May her memory be a blessing.

01:53 - Before we hear the first case,

01:55 - I would like to remind Council of a few things.

01:58 - Appellant's counsel, please approach the podium when your case is called.

02:03 - I will then give a short summary of the case.

02:07 - Please begin by introducing yourself and your co-counsel

02:11 - and identifying the party you represent.

02:15 - The justices are familiar with the cases, so we ask that you avoid

02:19 - any unnecessary recitation of facts or procedural history,

02:24 - and instead focus on the main issues on which we granted review.

02:28 - Counsel is welcome to rely on their briefs for particular issues.

02:33 - In cases in which there are multiple parties represented by separate counsel.

02:39 - Council should avoid repeating the same arguments

02:42 - as prior counsel, because we only want to hear them once.

02:47 - Please do not

02:48 - interrupt the justices when they are asking you a question.

02:52 - A justice question is not meant to trip you up.

02:55 - Rather, it indicates there are particular issues we wish to explore further.

03:01 - I remind you that we do not allow rebuttal.

03:05 - Finally, while we have no set time limit for argument in our court,

03:09 - I will advise counsel when the court is satisfied

03:12 - that all of its questions have been answered.

03:15 - And at that time, I will ask that you conclude your argument.

03:19 - Mr. Miller, please call the first case.

03:24 - The next case the court is going to hear is Commonwealth of Pennsylvania.

03:27 - By and through Philadelphia District Attorney Larry Krasner.

03:31 - An attorney, district attorney of Allegheny County, Steven Zappala,

03:35 - who are the petitioners versus the attorney general of Pennsylvania,

03:40 - the Commonwealth, and a number of,

03:44 - pharmaceutical companies.

03:47 - The case is about a basic question.

03:49 - Who has the authority to speak on behalf of Pennsylvania?

03:54 - The attorney general, or the Philadelphia and Pittsburgh district attorneys

03:59 - in connection with the opioid settlement?

04:03 - This is a hugely important issue

04:05 - because the opioid crisis,

04:08 - has led to a significant settlement in the issue about where

04:12 - and whether that settlement is final and where that money may go.

04:15 - Is is an important issue in Pennsylvania.

04:18 - For years, opioid manufacturers and distributors have faced

04:21 - thousands of lawsuits for their role in what has been alleged

04:26 - to be fueling addiction and overdose deaths in Pennsylvania.

04:30 - Many counties and cities, including Philadelphia, filed their own lawsuits.

04:34 - Under Pennsylvania's consumer protection law, both the attorney General

04:38 - and the district attorney local district attorneys

04:41 - have the power to bring civil cases against companies for unfair

04:45 - or deceptive practices, so Philadelphia D.A.

04:50 - Larry Krasner filed his own lawsuit against opioid companies, arguing

04:54 - that Philadelphia suffered unique harms and deserved its own day in court.

04:58 - At the same time, the Pennsylvania

05:00 - attorney general was negotiating a massive national settlement

05:04 - with companies like Johnson and Johnson and other major drug distributors.

05:09 - In 2021, that effort produced a $26 billion national settlement

05:14 - with hundreds of millions of dollars earmarked for Pennsylvania.

05:19 - But there is a condition to receive the money.

05:21 - All governmental lawsuits in Pennsylvania had to be resolved,

05:25 - including Philadelphia's

05:27 - Da. Krasner refused to drop the case.

05:30 - He argued that the attorney general had no authority to settle or extinguish

05:34 - lawsuits filed by independent district attorneys.

05:38 - He said that the law gives the Da equal

05:40 - enforcement power, not subordinate power, and that allowing the Attorney General

05:45 - to take over local cases would discourage DA's

05:49 - from investing resources and consumer protection enforcement.

05:53 - So Krasner sued the attorney general, asking the court

05:56 - to let Philadelphia continue its separate litigation.

06:01 - The attorney general responded and said only the attorney general can speak

06:04 - for the entire Commonwealth in statewide consumer protection matters.

06:09 - If every county could go its own way, the attorney general argued, Pennsylvania

06:13 - would lose its ability to negotiate large unified settlements.

06:17 - Companies would never agree to pay billions if they thought

06:21 - that dozens of local lawsuits could continue indefinitely.

06:25 - In early 2024, the Commonwealth Court sided with the Attorney General.

06:29 - The court held that when the attorney general settles a statewide

06:32 - consumer protection case, that settlement binds the entire Commonwealth.

06:37 - It said that district attorneys cannot override or continue separate lawsuits.

06:42 - Once the attorney general resolves those claims.

06:45 - So even though the law gives both the attorney general

06:49 - and the district attorney enforcement power, the Attorney General is the one

06:53 - who ultimately represents the Commonwealth as a whole.

06:57 - In practical terms,

06:58 - that meant that Philadelphia's lawsuit and any similar lawsuits had to stop.

07:03 - So this question will answer a major question about government

07:06 - authority in Pennsylvania, and the Supreme Court is reviewing the case.

07:11 - Its decision will determine whether the attorney general truly

07:14 - has the power to settle and shut down lawsuits

07:17 - brought by district attorneys, or whether local prosecutors

07:20 - can retain independent jurisdiction to pursue their own cases.

07:25 - Either way, the ruling will shape how Pennsylvania responds

07:28 - to major statewide crises for years to come.

07:31 - So with that, let's go to the courtroom and listen to the arguments

07:35 - in Commonwealth of Pennsylvania by and through Larry Krasner

07:39 - versus the Attorney General of the Commonwealth of Pennsylvania.

07:45 - Good morning.

07:46 - Good morning.

07:47 - Honorable justices of the Pennsylvania Supreme Court, that, I am Larry McMichael.

07:52 - I represent, district attorney of Allegheny

07:55 - County, Steven Zappala.

07:59 - Chief Justice Todd, you've explained the issue precisely.

08:01 - I will not repeat what you said. That is exactly the issue.

08:04 - And the answer to the question is no.

08:07 - I will demonstrate why the answer is no.

08:09 - Under the Constitution and under the Commonwealth Attorneys Act.

08:13 - My colleague Catherine Dorsey, who represents district Attorney

08:17 - Larry Krasner, Philadelphia County, will discuss

08:20 - the issue under the unfair trade practices.

08:23 - But consumer protection law.

08:26 - And also we'll reference the Commonwealth court's decision below.

08:31 - The beginning of your analysis has to be

08:34 - the statute that grants co-equal authority

08:38 - to the attorney general, on the one hand,

08:40 - and to the elected district attorneys, on the other hand,

08:44 - to bring civil cases, to recover civil penalties

08:48 - for violations of that law, the law being the consumer protection law.

08:53 - So this is a case where the district attorneys

08:55 - have sought to recover civil penalties on behalf of their electorates.

09:00 - The Pennsylvania Attorney General

09:03 - purported to supersede them.

09:05 - The question of super session has been addressed

09:09 - both in the statute and by this court on multiple occasions.

09:12 - Let's start with the statute

09:16 - and 1978.

09:18 - A couple of things happened.

09:20 - One is the Pennsylvania adopted a new constitution, Constitution

09:25 - provided in article four that the

09:30 - now elected attorney general.

09:32 - Prior to 1978, the Attorney General was an appointed position.

09:35 - But 1978 we now an elected Attorney General.

09:38 - The Constitution says that the Attorney General

09:42 - shall have such powers, quote,

09:44 - as may be imposed by law, as may be imposed by law.

09:48 - That's the Constitution.

09:50 - What does that mean?

09:52 - Well, in order to understand what the Constitution means,

09:55 - we have to take a step back to a little bit earlier in 1978,

09:59 - it was an important here also the year I graduated from law school.

10:02 - But that has little to do with this case.

10:04 - In in 1978, in January,

10:07 - this court decided a case about the power

10:11 - of the attorney general to supersede a district attorney.

10:16 - Casey's Commonwealth versus shop.

10:19 - Shop was a case where a Philadelphia police officer shot

10:22 - a patron of a restaurant.

10:23 - There was an investigation.

10:24 - The district attorney decided not to prosecute.

10:27 - The attorney general superseded and decided to prosecute.

10:33 - Relying on a line of

10:34 - cases that gave the Attorney General that power

10:38 - as a matter of common law, this court dissected that issue.

10:41 - In the sharp opinion,

10:42 - it's important to understand what the court did and why it did. It.

10:46 - The court said, first of all, there is no common law with respect

10:50 - to the relationship between the attorney general and the district attorney.

10:54 - There is no common law. Why is there no common law?

10:56 - Because

10:57 - elected district attorneys were not known to the common law.

11:02 - They didn't exist a common law.

11:04 - The attorney general had deputies.

11:05 - And of course, he could

11:06 - certainly seat his deputies because his deputies worked for him.

11:11 - But he couldn't supersede an independent elected official.

11:15 - So the Constitution is adopted right after that,

11:19 - after this court has decided that there is no common law right

11:24 - of the attorney general

11:25 - to supersede a district attorney.

11:29 - The legislature

11:30 - responded to the enactment of the Constitution 18 months later

11:34 - by passing the Commonwealth Attorneys Act.

11:38 - Okay.

11:38 - The Commonwealth Attorneys Act lays out who has what power.

11:43 - And it addressed the issue.

11:48 - The Commonwealth Attorneys Act changed shot.

11:52 - Section 205 and four of the Commonwealth Attorneys Act

11:56 - gives the Attorney General the power to supersede

12:01 - an elected district attorney

12:03 - in a criminal case

12:06 - on petition to the court.

12:07 - In other words, there's judicial supervision.

12:09 - There's no unilateral power to supersede.

12:11 - There's judicial supervision under the statute

12:15 - in criminal cases.

12:16 - But what about civil case as well?

12:18 - There's a separate section of the Commonwealth Attorneys Act

12:20 - that deals with the attorney general's power in civil cases.

12:24 - That's section 204.

12:26 - And if you look at 204, see,

12:29 - what you see

12:30 - is there is a power to intervene in a case

12:35 - affecting the Commonwealth, but there is no power to supersede.

12:39 - So the statute is 100% clear.

12:42 - The attorney General has a power to supersede in criminal cases.

12:45 - He does not have a power to supersede in civil cases.

12:48 - It's nowhere there.

12:50 - Counsel can I can I explore the court over here?

12:54 - This way. I'm sorry.

12:55 - That's okay.

12:55 - I'm sorry, Chief Justice.

12:56 - I'm over in the court.

12:58 - I want to I want to talk about this concept of super session,

13:01 - because that's how this case is being presented as a question of super session.

13:07 - But the super session cases that I've seen and that you're referencing deal

13:10 - with a situation where the office of the attorney general

13:13 - is stepping in for the prosecutor in their case.

13:17 - So it's a criminal prosecution.

13:19 - And the attorney general says, move aside, district attorney.

13:23 - I'm going to prosecute the case.

13:25 - That's not what we're dealing with here.

13:26 - We're dealing with separate lawsuits.

13:30 - The lawsuit

13:31 - that's happening by the Philadelphia and Allegheny County district attorneys

13:35 - and the Common Pleas Court,

13:36 - and a separate action that was commenced by the attorney general.

13:40 - Why is that super session in the sense that we have historically understood it?

13:45 - It is super session because the attorney general is exercising

13:48 - the power to replace the judgment of an elected district attorney

13:52 - who is responsible for not that

13:53 - they're not replacing the district attorney and the like.

13:56 - For example,

13:56 - what is the status of the civil suit brought by the Allegheny

13:59 - County District attorney and the Philadelphia district attorney?

14:01 - Well, if it were up to the attorney general, the civil suits would be over.

14:04 - No, but what's the status of them now? They're not over, are they?

14:06 - They're still pending. Right? Right.

14:08 - So the so the attorney general has not stepped in and superseded the.

14:12 - You can still proceed with those lawsuits.

14:15 - No, that's not the position of the attorney general.

14:17 - I'm not asking the attorney position. Sorry, general.

14:19 - What is what is stopping you right now from proceeding with those lawsuits?

14:23 - The Commonwealth Court has ruled that we cannot.

14:26 - They've said that you cannot move forward.

14:27 - Correct. Correct.

14:29 - Because the attorney general superseded the elected district attorney.

14:33 - But see, that's this is this is why I'm struggling with the super session thing.

14:37 - Okay.

14:38 - And maybe again, I

14:39 - maybe I should look at it in the prism that you all are looking at it.

14:42 - But this is the way I look at it.

14:44 - You would agree that the attorney General has the authority to bring an action

14:47 - under the Unfair Trade Practices Act, consumer protection law, correct?

14:50 - Correct.

14:50 - And they have the authority to sue, defendants on behalf

14:54 - of the entire town or the Pennsylvania, including Philadelphia, Allegheny County.

14:58 - The attorney general has that power.

15:00 - Yes, sir. And if they do bring that suit,

15:01 - they have the authority to settle that suit right?

15:04 - They do.

15:05 - Okay.

15:06 - So with all that authority, it seems to me that the question simply is,

15:09 - is that settlement enforceable in your Common Pleas court actions?

15:14 - Well, that is a question that my colleague Miss Dorsey will address.

15:17 - I understand that, but that's not super session.

15:19 - That's a matter of contract law.

15:21 - That's a matter of is a settlement enforceable?

15:23 - And what I would have expected to see instead of an original jurisdiction,

15:26 - Commonwealth court declaratory judgment action would have been

15:30 - the the pharmaceutical companies coming into is a Delaware county.

15:33 - Is that where the coordination is happening? Yes.

15:35 - Yes. Your honor.

15:36 - Coming to Delaware County and say motion to dismiss.

15:39 - We want to enforce the settlement agreement.

15:41 - And then you would litigate in Delaware County

15:42 - the contractual enforceability of the settlement agreement.

15:47 - One could have done it that way.

15:48 - That's not what happened here.

15:49 - But, what avoids the issue of super cession?

15:52 - It then it becomes a simple matter of is the settlement agreement enforceable?

15:57 - No, it's a little bit more than that.

15:59 - It's a little bit more on that.

16:00 - It's whether the district attorney's lawsuit

16:04 - can be settled by the attorney general. No,

16:08 - that's what that's what I'm trying to press you on.

16:10 - And I understand that that's the rubric in which you want to present the case.

16:14 - I'm just wondering, you know,

16:16 - whether this super session thing is just the wrong path to go down.

16:19 - And the question really is not whether the attorney general can settle your case,

16:25 - but whether the attorney general's settlement can be enforced in your case.

16:32 - As a matter of contract law.

16:34 - I understand the point you're making.

16:36 - And I think that in the light of the Commonwealth court's decision,

16:41 - that's not what we're here to decide, though.

16:43 - I mean, that's not what happened.

16:45 - And the the maybe that's what should have happened, but it isn't.

16:49 - And when one party settles a case,

16:52 - generally speaking, it does not, in fact,

16:55 - affect the rights of another party pursuing the same or similar case.

16:59 - There may be issues of double recovery there.

17:01 - Maybe that's for the lower court.

17:02 - Sort that all the time in tort cases where there are multiple plaintiffs.

17:06 - I'm just wondering whether all of it should have been sorted out

17:08 - in Delaware County and not in the Commonwealth Court.

17:13 - Your honor,

17:14 - that may may, may mean that a better course of action.

17:17 - But it's not what happened?

17:19 - And and, that's why we're here.

17:21 - I mean, fundamentally, what happened is the attorney general

17:24 - attempted to settle cases brought by district attorneys.

17:27 - That is super session.

17:29 - He is superseding the district attorney's rights to prosecute those same cases.

17:33 - And if I can get back to to the point I want to make, that

17:36 - this court has actually address this issue and it's addressed it in broad terms.

17:40 - And I think if you if you just stick with the basic Law

17:43 - that has been well-established in this Commonwealth,

17:46 - you get to the right answer here.

17:49 - So after the after the enactment

17:51 - of the Commonwealth Attorneys Act, after the enactment of that act,

17:55 - this court was presented with a case called Garcia.

17:58 - Garcia.

17:58 - It was a case where a lawyer was trying to bribe a cop for,

18:01 - you know, changing his testimony or something.

18:02 - And lawyer was indicted and the attorney general attempted

18:06 - to prosecute that case because the local district attorney wasn't doing it.

18:10 - And this court said this is very important.

18:14 - This court said in court, see it that the attorney general does not possess

18:18 - any inherent additional powers

18:22 - not set forth in the Commonwealth Attorneys Act.

18:26 - Counsel, can I can I interrupt?

18:27 - I hate to get you off the path that you're intent on going

18:31 - down, but,

18:34 - I want to follow up on Justice Robson's line of questioning.

18:39 - Clear.

18:40 - The Commonwealth Court looked at this as the attorney general's

18:44 - right to supersede. Yes.

18:47 - It's clear in the briefing in this case that the AG is taking the position

18:52 - that they have a right somewhat of super section.

18:56 - Am I correct? Yes.

18:58 - So the AG never attempted to supersede in this case,

19:02 - the AG decided to ignore

19:06 - the actions that were pending in Delaware County,

19:10 - filed lawsuits solely for the purpose

19:12 - of effectuating a settlement in the Commonwealth Court.

19:17 - Correct. Right.

19:18 - Okay. Now,

19:20 - when the AG

19:23 - took that route,

19:25 - did the district attorneys,

19:28 - have an opportunity in any way to participate in that action

19:33 - that was pending in the Commonwealth Court?

19:38 - I'm not sure I understand what you mean by an opportunity.

19:40 - We were not parties to it.

19:41 - We were not served with it to intervene.

19:44 - The attorney, the district first did not attempt to intervene.

19:47 - Okay. So

19:49 - I tend

19:50 - to there was no attempt to to position here.

19:53 - If there were any attempt

19:54 - to two procession, it would have had to have taken place in Delaware County.

19:58 - That just didn't happen.

20:00 - And so, you know, the way this case is going on has,

20:04 - I don't know, maybe flows from the fact that the attorney general in the release

20:10 - and the other papers that were filed in this case took the position, that

20:15 - they had the right to control and settle any other actions that were pending.

20:20 - Your honor, that's exactly correct.

20:22 - Now, that sounds like super session. It is super session.

20:24 - Without taking any steps to supersede other than saying

20:28 - I have the right to supersede

20:30 - or I have the right to take over and settle these cases.

20:33 - Am I on the right track here?

20:34 - How we got to the to the notion that there was super session here,

20:38 - which is

20:39 - which is why I'm arguing super session because in fact, that's what happened.

20:43 - Okay.

20:43 - I mean, maybe as as Justice Robson pointed out, maybe that shouldn't have happened.

20:46 - Maybe there should have been a different procedure.

20:48 - But what happened was the attorney general said, I'm settling

20:51 - your case, and, and, we we challenge that, and, and I

20:56 - and if I understand your position is if they don't have a right to supersede,

21:00 - they certainly don't have a right to settle.

21:02 - That is correct.

21:03 - That is correct. Correct.

21:05 - So given that that in the,

21:10 - so all right, ask you the

21:14 - where to stand.

21:17 - And not.

21:18 - It seems to me that if the Allegheny County decided

21:24 - that they wanted to settle the case there, the master chef and so on,

21:30 - why did the DA's have the right to proceed

21:33 - when the County of Allegheny has agreed?

21:37 - Okay.

21:37 - So that is a that is a question that will be addressed by my colleague.

21:40 - But I will answer your question because under the law,

21:45 - the Unfair Trade Practices and consumer Protection law, there are co-equal rights

21:50 - to bring civil actions to collect civil penalties.

21:53 - Okay.

21:53 - Both the attorney general and a different have those rights.

21:56 - The counties do not have those rights.

21:59 - That is not a right.

22:00 - Invested in the county can bring a private claim.

22:02 - But that's different.

22:03 - This is a civil penalty claim.

22:05 - Counties can't bring that claim.

22:07 - And and and what happened was the attorney general

22:12 - superseded us and said I can do this and I'm going to settle it.

22:15 - You're done. And that's why we're here.

22:18 - So let me just get back to Corsia for a minute,

22:20 - because there are some important language

22:21 - that I think the court needs to understand.

22:23 - It's language that comes right from this court,

22:26 - Garcia said when

22:28 - talking about article four of the Pennsylvania Constitution.

22:31 - Castle, you said the use of the language, quote, as may be imposed,

22:36 - clearly shows an extension of power to the legislature

22:41 - to statutorily define and regulate

22:44 - the powers of the attorney general.

22:46 - There is no more bed of common law precepts.

22:51 - The attorney General's powers.

22:52 - This is important.

22:54 - This is what this court said.

22:54 - The Attorney general's powers are strictly a matter

22:57 - of legislative designation and enumeration, strictly

23:01 - a matter of legislative designation and enumeration.

23:06 - So this court looks at your precedent and looks at the Commonwealth Attorneys Act.

23:10 - You simply look at the act and say, okay, where in this act

23:13 - did it give the attorney general the right to do what he did in this case?

23:18 - It's not there. It isn't there. So

23:22 - there's one more case that you should you should consider here.

23:25 - And I'll wrap up.

23:26 - And that is a decision, actually, a decision by a madam chief such as tort.

23:30 - In 2011.

23:31 - This is the latest pronouncement of this court on the subject

23:35 - of the attorney general's powers.

23:36 - Okay, this is about power

23:38 - and about what power the attorney general has under the Constitution

23:42 - and under the statute that grants powers

23:44 - to him.

23:47 - In Briggs Commonwealth versus Briggs,

23:50 - this court said it is now firmly established in this Commonwealth

23:55 - that the powers of the Attorney General are strictly limited

24:00 - and solely

24:02 - a matter of legislative designation and enumeration,

24:07 - solely a matter of legislative designation and enumeration.

24:13 - So Briggs, Re-Emphasized Corsia

24:16 - and it stands for the proposition that has been the law in this Commonwealth

24:20 - for 20 plus years now that the power of the elected

24:23 - Attorney General emanates from the legislature,

24:28 - and if it's not in a statute,

24:30 - he doesn't have the power to do what he's trying to do.

24:34 - You look at the statute.

24:36 - It's only one statute to look at section 240 that tells you

24:39 - what the powers of the attorney general are in civil cases.

24:43 - There is nothing in there that says, I think if that super section

24:46 - doesn't say anything about settling cases

24:48 - that are brought by the district attorney's,

24:50 - it's simply not there,

24:52 - and therefore the power doesn't exist and the case should end there.

24:57 - So for that reason and for the reasons that my colleague

25:01 - will now explain, the decision of the Commonwealth Court should be referred.

25:05 - Are there questions for Mr. McMichael?

25:08 - It's highly unusual.

25:11 - Thank you.

25:12 - I take it as a compliment. Thank you, Your Honor.

25:14 - Let's hear from Miss Dorsey.

25:23 - Good morning, Your Honor.

25:24 - May it please the court.

25:26 - Catherine Dorsey from Bernard Budd, PC.

25:28 - On behalf of District Attorney Krasner, I first want to address the questions

25:33 - that have been, posed by the court about whether,

25:38 - the framing of this case is right in terms of a power

25:41 - of superstition or a power to settle the case.

25:45 - And I think it's a distinction without a difference, Your Honor.

25:48 - I mean, it was briefed,

25:51 - to the courts below in terms

25:53 - of the super session power, but that was in terms of encompass

25:56 - the power to settle or release the district attorney's case.

26:01 - And at the time, after the settlement agreements were reached,

26:04 - the district attorneys brought a declaratory judgment action

26:08 - in the Commonwealth Court to make sure to clarify that the Attorney General

26:14 - could not settle their claims that were brought in the Court of Common Pleas,

26:19 - and the Commonwealth Court originally held that that challenge was not ripe.

26:24 - And then we waited until the consent decrees

26:26 - were, entered after the settlement agreement.

26:30 - And then the district attorneys again brought suit

26:34 - and challenged the

26:36 - attorney general's power to release or settle their actions.

26:40 - So did did just the matter of the settlement agreements.

26:43 - This these are these are not Pennsylvania specific settlement agreement.

26:46 - These are national settlement agreement. Correct.

26:48 - Your honor, all the consent decrees were entered in Pennsylvania, right.

26:53 - Do any of the documents specifically reference

26:56 - specifically referenced the Delaware County litigation by Philadelphia

27:00 - District Attorney Krasner and Allegheny County District Attorneys of Power? No.

27:04 - Although there are side agreements that were entered into by the Attorney General

27:09 - and the district attorneys, which I believe were attached to those consent.

27:14 - You don't have you don't have any side agreements with you.

27:19 - Your your client did not want did not have a side agreement.

27:22 - Right.

27:23 - Our clients had no agreements with the attorney general.

27:26 - No, he they had their cases and they intended to proceed with that.

27:29 - Right.

27:30 - But but the the the reason why I was raising the question

27:34 - and maybe the simple answer is there's two ways to skin the cat.

27:37 - But but my concern about super

27:39 - is you get into a power dynamic and you get into a constitutional issue.

27:43 - And we try to avoid constitutional questions if we can.

27:46 - Why isn't this just a question of capacity

27:51 - and contract interpretation?

27:53 - Because it seems to me that everybody agrees

27:57 - that the attorney general can bring a claim

28:00 - under the Unfair Trade Practices and Consumer Protection law.

28:03 - There's I don't see anybody arguing that they that the attorney general

28:07 - and the district attorney can't both bring claims at the same time.

28:12 - You're not arguing that.

28:13 - We are not arguing that, Your Honor.

28:14 - So we know the attorney general can bring a claim.

28:17 - We know the attorney general can settle a claim on behalf of the Commonwealth.

28:21 - So I guess the question simply, is,

28:24 - if that is that settlement enforceable

28:28 - in the Delaware County litigation?

28:30 - I'd like to take issue with one thing.

28:32 - Your honor just said that attorney general can bring a claim

28:36 - and he can settle his claim.

28:39 - The district attorney can also bring a claim,

28:43 - and the district attorney can settle his own claim.

28:46 - Well, but that goes

28:47 - that goes to capacity that that goes to the framing of your question,

28:50 - because you talk about them as if they own the claims, the claims belong

28:53 - to the Commonwealth, the claims don't belong to the law firms,

28:57 - they don't belong to the law firms.

28:59 - But I think the and this might be a good time

29:03 - to transition into the the discussion of the statute.

29:06 - This you know yeah I want to do that.

29:08 - But I just want you to understand why I'm thinking about this capacity thing.

29:11 - It's because if if the statute gives the authority to sue on

29:15 - behalf of the same defendants to two different law firms

29:19 - and, you,

29:23 - then it really becomes a question of

29:26 - the enforceability of the settlement agreement.

29:29 - And that's a matter of contract.

29:31 - I think the issue here, Your Honor, is that two plaintiffs

29:35 - are given the authority to bring a suit and is not named.

29:39 - The Da is not a plaintiff.

29:41 - The Commonwealth is a plaintiff.

29:42 - I disagree, Your Honor, that the statute gives

29:46 - both a district attorney and the attorney general

29:49 - standing to bring a claim as a plaintiff in the name of the Commonwealth.

29:54 - Well, in the name of the Commonwealth, that's the plaintiff

29:56 - in the name of the Commonwealth means the Commonwealth is the plaintiff.

29:59 - I don't think that's correct, Your Honor.

30:01 - There are numerous statutes in this state

30:05 - which provide that in the name of the Commonwealth is different

30:09 - from a suit by the Commonwealth or when the Commonwealth is a party.

30:14 - Okay. Let's talk about that. And I'm interested in that.

30:18 - We cite these statutes, I

30:20 - believe, at page 28 of our brief, but for one example, 16 Pennsylvania

30:25 - statutes, section 1414

30:29 - 302 that provides distinguishes between

30:32 - in the name of the Commonwealth or if the Commonwealth is a party.

30:37 - And there is another statute, 63 Pennsylvania Statutes 1604.

30:41 - See which authorizes an insured to bring suit in the name of the Commonwealth.

30:47 - If no suit should be brought by the Commonwealth of Pennsylvania,

30:51 - there are numerous statutes.

30:52 - Well that's different.

30:53 - That's because the that's because, like the attorney general,

30:56 - those are those are basically allowing private parties

31:00 - to step into the shoes in the name of the Commonwealth, correct.

31:04 - Which is similar to the district attorney.

31:08 - They're not private, though.

31:09 - The district attorney's a law firm.

31:11 - The DA's office is an elected law firm.

31:13 - The attorney general is an elected law firm and representing the Commonwealth.

31:17 - And no, the district attorney is not permitted

31:21 - under Commonwealth law to represent the Commonwealth.

31:25 - That is, under the Commonwealth Attorneys Act.

31:28 - Only the Attorney General, the Attorney General,

31:31 - shall represent the Commonwealth in all civil cases.

31:35 - The district attorneys are not authorized to represent the Commonwealth.

31:38 - When they bring a CPO action, it is in their name.

31:43 - It's the plaintiff in the name of the Commonwealth.

31:47 - The counsel can.

31:48 - Can I follow up on this?

31:51 - When I look at the, Unfair Trade

31:53 - Practices Act, language,

31:56 - I read it to say that

31:58 - the district attorney can bring an action

32:02 - in the name of the Commonwealth,

32:05 - but so can the attorney general.

32:09 - Obviously, the jurisdictional limitations on the district attorney's

32:14 - in every county would limit their ability to state a claim

32:20 - only for those claims that arise in their jurisdiction.

32:25 - That's correct.

32:25 - And that's what they did in Philadelphia County.

32:29 - I'm going to refer you to Delaware County.

32:31 - But that was just the consolidation point.

32:33 - That's what happened.

32:34 - Each of the, district attorneys who brought claims, under the Unfair

32:40 - Trade Practices Act, but brought it in the name of the Commonwealth,

32:46 - on behalf of those individuals that it could represent

32:50 - and within its jurisdiction, am I correct?

32:54 - Yes, you are correct.

32:55 - I mean, I, I don't actually see the statute doing anything other than that.

33:00 - Along the same lines, the attorney general

33:04 - can certainly settle any claims.

33:07 - What they can to under your theory is settle

33:12 - and discontinue actual lawsuits that have been brought.

33:16 - I mean, there are many counties, district attorneys who didn't bring lawsuits.

33:21 - And so they had claims.

33:23 - They had claims.

33:24 - And it may be that the counties also had claims.

33:27 - We're not interested in that now.

33:28 - But to the extent that there was no legal action filed,

33:33 - the attorney general had the right, you would agree

33:36 - to settle those claims that had not been filed,

33:42 - by district attorneys.

33:43 - Our position, Your Honor, as if there were no filed claims by district attorneys.

33:47 - Then the issue of releasing those claims is not before this court.

33:51 - Right. But isn't that why this be?

33:54 - I, I,

33:55 - I wouldn't have gone down the path that the Commonwealth Court went in this case,

33:59 - but I think I understand how they sell on to this super session,

34:05 - paradigm that they were arguing.

34:07 - It's not a question.

34:09 - If claims can be settled, any claims could be settled.

34:13 - The question becomes, can they be settled when there have actually been

34:17 - lawsuits filed that would require super session?

34:22 - I think was the Commonwealth court's analysis of that.

34:26 - This I think that's a fair analysis here or summary, Your Honor,

34:31 - if I could turn to specifically the CPL statute here

34:34 - to address that and why we think it's unambiguous here

34:38 - that the attorney general did not have authority to release,

34:44 - the district attorney's public enforcement actions.

34:47 - There are two relevant provisions in the CPO section four,

34:51 - which gives concurrent and equal authority to the attorney general

34:55 - and the district attorneys to serve as plaintiffs in public enforcement actions.

35:01 - And then section eight, which provides

35:03 - that if the court finds a violation of the statute,

35:07 - the attorney General or the appropriate district attorney

35:11 - acting in the name of the Commonwealth of Pennsylvania may recover

35:14 - on behalf of the Commonwealth of Pennsylvania, a civil penalty.

35:18 - Section eight, therefore, of the statute plainly contemplates

35:23 - contemplates that either plaintiff, either the Attorney General

35:26 - or the District Attorney has authority to prosecute to completion

35:32 - a public enforcement action he has brought and recover civil penalties.

35:37 - And just to be clear, the public action we're talking about that

35:40 - the district attorney's brought

35:42 - is completely separate from the private actions for damages

35:46 - that can be brought under section 9.2 of the statute, which is what

35:50 - Philadelphia and Allegheny counties had claims that they brought here under

35:54 - that private section.

35:56 - Okay.

35:56 - Repeat that a pardon me, could you say that last part again?

36:00 - So Allegheny and Philadelphia, Allegheny County and Philadelphia

36:04 - both brought private, claims

36:07 - for damages under section 9.2 of the TPL,

36:11 - which they opted in to the settlement agreement and release of those claims.

36:14 - But those are different

36:16 - than the claims brought here by the district attorneys,

36:18 - which are public enforcement actions.

36:20 - And the Philadelphia and Allegheny County do not have such claims

36:25 - because only the attorney general or district attorney

36:28 - can bring public enforcement claims under section four.

36:31 - So counsel, what's the what's the what's the principle then let's say

36:35 - let's say the facts were different.

36:37 - And the attorney general brought an action

36:40 - only on behalf of the Commonwealth for the people of Philadelphia.

36:45 - And then the district attorney says, well, I'm not going to let that happen.

36:49 - I'm going to bring my own action on behalf of the people of Philadelphia.

36:54 - Is that allowed?

36:56 - So the statute seems to allow him to bring that suit.

37:00 - But of course, there would be principles of, you know, double recovery

37:04 - that you couldn't recover twice against the same defendant for the same conduct.

37:09 - But they could they're both go down the road at the exact same time and reach.

37:13 - How would they be resolved?

37:15 - Again, it's

37:15 - that issue is not before this court because that's a different question.

37:19 - And there were questions the statute says, you know, the attorney general

37:23 - or district attorney, we've certainly never taken the position that that means

37:27 - you can only have one action, because, for instance, there,

37:30 - you know, it's not the issue here, but we we look at cases

37:35 - not just because of the issue here. We look at cases.

37:37 - If we're going to adopt your principle,

37:39 - then we have to look at how that might impact other cases.

37:43 - And if your principle relies on the idea that,

37:46 - oh no, you can have separate independent actions, independent recoveries.

37:50 - And oh, by the way, if there are two actions,

37:53 - then the only way the case gets settled is if both the Attorney general

37:57 - and the district attorney happen to agree that the settlement is appropriate.

38:01 - What if they don't?

38:03 - Well, if,

38:04 - for instance, when a district attorney brings in action first

38:07 - and the attorney general is interested, he has a right to statutorily intervene.

38:12 - I gave you a different fact pattern.

38:14 - I said, if the attorney general brings in action

38:16 - first and the district attorney says, I don't,

38:19 - I don't like the attorney general, I don't I don't believe that they're going

38:22 - to do what I want them to do.

38:24 - I'm now going to bring a duplicative action,

38:27 - and I'm going to be more aggressive or less aggressive.

38:31 - How how do we deal with that?

38:34 - That is an issue.

38:35 - Again, I don't think the court needs to decide,

38:38 - but the how does your theory, how does your theory,

38:41 - if we rule the way you want us to rule, impact that scenario?

38:45 - I don't think it does, because that situation does not involve

38:50 - where the attorney general is releasing the district attorney's claims.

38:56 - And I think in most of that, it's the same claim.

38:58 - It's an identical claim on the offer for the same thing for the same Commonwealth.

39:03 - You have to accept the facts I'm giving you.

39:06 - How does your view in this case impact

39:09 - that possible future scenario?

39:12 - I think in that future scenario, the likelihood would be that the

39:16 - the Court of Common Pleas would need to sort that out

39:19 - like any multi plaintiff case.

39:22 - But in general,

39:25 - double recoveries would

39:27 - probably prevent the district attorney's case in that suit.

39:32 - But again, so they couldn't settle.

39:35 - Sure they could.

39:35 - They could settle on this

39:36 - as long as the Da and the attorney general agreed on the settlement.

39:39 - I think that's right.

39:40 - But the point is that the attorney general can't come in and decide,

39:45 - as in this case, after the DA's have been litigating the case for a long time

39:50 - without any process that he's just going to settle their claims.

39:55 - And that's a different case than the hypothetical, Your Honor. No.

39:58 - Well, you're saying their claims is based on

40:01 - they're the exact same claims on behalf of the exact same Commonwealth.

40:04 - But what makes them different is who the law firm is.

40:07 - Well, but you, your Honor, you can't get again.

40:11 - In that case, it's the principles of double recovery.

40:13 - I think that I'm not sorry, but the recovery again,

40:16 - I'm not talking about double recovery.

40:18 - I understand they could go to trial both. I mean,

40:20 - you could have two different trials, but they probably get consolidated.

40:23 - The attorney general argue for $100 million in damages.

40:28 - And the

40:29 - district attorney may argue for $200 million in damages.

40:32 - The jury is going to reach whatever the jury is going to reach.

40:35 - But I'm talking about settling

40:38 - that your factual scenario would essentially preclude

40:41 - the settlement of those claims, because unless the Da and the

40:46 - attorney general would agree, well, if they're joined together, they will.

40:49 - If those two cases are joined together, which would be a natural thing to do,

40:53 - then they can work out a settlement together

40:56 - as would be an appropriate thing for the court in that case to work out.

41:00 - But again,

41:01 - I think these are downstream issues that would be resolved by the trial court

41:06 - resolving that when you have everybody together resolving it instead of here

41:11 - as, the attorney general kind of went around those procedures,

41:15 - even though he could have intervened in the district attorney's action

41:19 - and just declared that their actions were settled.

41:22 - Counsel, if I can just follow up on,

41:24 - Justice Bryson's question in his in his, hypothetical,

41:30 - you wouldn't have the issue

41:31 - that is sort of embedded in the problem that we're addressing here.

41:35 - In that case where both the AG and the Da

41:39 - bring an action,

41:42 - in this, each brings

41:44 - in action in the same county, in the same courtroom.

41:48 - And the cases are consolidated and the cases are tried.

41:51 - There wouldn't be a question as to how damages would have to be allocated.

41:57 - There would would be one determination in that context

42:01 - based upon a jury verdict or agreed upon settlement after discovery, etcetera.

42:05 - As to what the damages,

42:09 - are in that case, right in that county.

42:13 - Yes. That's not what we have here.

42:15 - That's what the problem is.

42:16 - Yes. Your honor, I agree,

42:20 - there is no language in the text of the CPO

42:24 - governing public enforcement actions that could be read to me.

42:27 - And the attorney general here has any power to supersede

42:30 - a district attorney's public enforcement action,

42:33 - including a power to release the DA's action.

42:36 - Again, the section eight language says that the appropriate D.A.

42:40 - may recover civil penalties, that language is not qualified or limited

42:45 - in any way, and does not make the district attorney's authority

42:49 - to prosecute or recover penalties dependent on the Attorney General.

42:55 - In other words, there are two potential plaintiffs here

42:57 - the attorney general or the district attorney,

43:00 - who can bring a public enforcement action for civil penalties

43:04 - because the statute does not confer,

43:07 - authority on either plaintiff over the other plaintiffs,

43:12 - each plaintiff can control only his own action,

43:14 - consistent with the general rules of litigation.

43:18 - The statute cannot reasonably read be read

43:20 - another way, and is therefore unambiguous.

43:24 - Appellees, in fact, do not offer an alternative reading of the statute.

43:28 - Instead, they suggest that because the statute is silent

43:32 - as to what happens with when both the attorney general

43:34 - and a district attorney bring actions, that makes the statute ambiguous,

43:40 - but that is a gap, not an ambiguity, and it is well established

43:44 - that this court does not fill statutory gaps.

43:47 - And so earlier we had a discussion about whether or not this is truly

43:53 - the AG superseding, whether super session is the correct concept.

43:59 - Isn't it

44:00 - possible that that that analysis really doesn't matter at all?

44:04 - It's a de facto super session if it's not an actual super session?

44:08 - And does that really, influence our analysis at all?

44:13 - I don't think it does, Your Honor.

44:14 - I think it's the same analysis, whether you call it a super session

44:17 - or a power to release someone else's claim.

44:20 - Again, it's it's a power that's not in the statute

44:23 - that is not given to the district attorney here.

44:25 - And I think you can frame it as narrowly

44:28 - or as broadly as you like, and it would still get to the same result.

44:32 - Thank you.

44:34 - And so because the CPS does not unambiguously does

44:37 - not authorize the attorney general to release a district attorney's claim,

44:42 - the attorney general lacked authority to do so here

44:45 - unless he can point to other authority outside the statute.

44:48 - As Mr.

44:49 - McMichael has already explained, there is no other authority

44:52 - in the Commonwealth that, gives the attorney general that authority.

44:57 - I'd like to

44:58 - focus on how the Commonwealth Court also got,

45:02 - its analysis wrong in determining

45:04 - that the that the statute was ambiguous.

45:08 - And I'd like to focus on four critical legal errors.

45:11 - First is the one we've kind of touched on already,

45:13 - which is that the Commonwealth implicitly held that

45:16 - because every public KPL action must be brought in the name of the Commonwealth,

45:22 - that is an action by the Commonwealth, even if it is brought by

45:25 - a district attorney.

45:27 - That is wrong, as we've discussed in the name of the Commonwealth

45:30 - is not the same as by the Commonwealth or on behalf of the Commonwealth.

45:34 - Those are distinct terms used differently in the CCL and other Commonwealth

45:38 - statutes, and the courts are required to give them distinct meanings.

45:42 - They are not interchangeable.

45:44 - Indeed, if the Commonwealth were the party

45:46 - plaintiff in every public action, as the Commonwealth Court held,

45:53 - then the Attorney General would be required to take over

45:56 - the action pursuant to his duty in the comment.

45:59 - Commonwealth Attorneys Act that he represents the Commonwealth

46:03 - in all actions brought by or against to the Commonwealth

46:06 - well in the unfair trade practices, consumer protection

46:09 - laws, a specific statute so specific would override the general.

46:14 - I'm sorry I missed the last.

46:15 - The the Unfair Trade Practices and consumer protection law is a specific

46:19 - statute.

46:20 - The Commonwealth Attorneys act as a general statute.

46:22 - The specific would override the general.

46:24 - I agree, Your Honor. Okay.

46:28 - But but

46:29 - but again, just to be clear, let me ask what you're agreeing with,

46:33 - because, Justice Robson, I can't win.

46:38 - Right.

46:38 - Your honor, always on my toes.

46:40 - What do you

46:41 - what exactly are you agreeing with?

46:43 - Because he's suggesting that the Unfair Trade Practices Act,

46:48 - specifically gives, the,

46:54 - attorney general to bring this action.

46:58 - I'm agreeing that the specific controls, the general and the CPO action here

47:03 - gives both the attorney general and the district attorney

47:07 - a right to bring an action in the name of the Commonwealth

47:11 - here.

47:11 - That's what I'm agreeing to.

47:12 - Okay.

47:16 - If if it was held that,

47:18 - every action brought in the name

47:21 - of the Commonwealth is, in fact,

47:25 - brought by the Commonwealth is an action for the Commonwealth

47:28 - that would effectively eviscerate

47:30 - the district attorney's authority to bring these actions.

47:33 - Either the,

47:36 - they they'd only

47:37 - have a right to bring the action, and then they essentially have to turn

47:40 - the prosecution or the litigation, of the action over to the attorney general.

47:46 - And here, in fact, the attorney general never sought to take over

47:50 - the district attorney's actions, suggesting that even he does not believe

47:54 - that a suit

47:54 - in the name of the Commonwealth means that it is brought by the Commonwealth.

47:58 - Instead, the attorney General recognized

48:01 - that the district attorneys have a right to,

48:04 - under the statute, to bring a public enforcement claim for penalties,

48:08 - which is why he tried to persuade all 67 district attorneys

48:12 - to join the settlement agreement and release their claims.

48:15 - There would have been no need to do so if the district attorney's claims were

48:19 - in fact the Commonwealth's claims, and could be released by the Attorney general.

48:25 - The second error in the Commonwealth Court's opinion was that it understood

48:28 - every public action EPL action to be a suit by the Commonwealth,

48:33 - and because of that, it found there was a conflict in representation

48:36 - whenever both a district attorney

48:38 - and the Attorney General bring public enforcement actions.

48:42 - But such a conflict of interest,

48:44 - conflict and representation is statutorily precluded.

48:47 - As we've discussed, the Commonwealth Attorneys Act,

48:50 - section 204 C requires the Attorney General shout to represent

48:55 - the Commonwealth in any civil action brought by or against the Commonwealth.

49:00 - The district attorneys do not have the authority to represent the Commonwealth,

49:05 - so the Commonwealth courts contrary interpretation actually creates a conflict

49:09 - with the Commonwealth Attorneys Act.

49:12 - Third, the Commonwealth Court also Aird in determining

49:15 - the legislative intent behind the statute,

49:19 - even if the statute were ambiguous such that the was that it was appropriate

49:23 - to look at a legislative intent, the court made two errors.

49:27 - First, it held that the Commonwealth.

49:30 - The Commonwealth Court

49:31 - held that the General Assembly must have intended to incorporate

49:35 - the Attorney General's common law powers, which at the time the CPA was enacted,

49:40 - were understood to include a power to supersede a district attorney,

49:45 - but this court in Qof overruled those cases and explained that

49:49 - the Attorney General never had a common law power to supersede a Da,

49:54 - and because the Attorney General never had such a power, it is not reasonable

49:58 - to assume that the General Assembly would have intended to incorporate

50:02 - such a non-existent power.

50:05 - But even if that were

50:06 - right, as the court has to interpret the CPO

50:10 - in party materia with the Commonwealth's constitution

50:13 - and the Commonwealth Attorneys Act, which appellees agree on, that

50:17 - and the Constitution and the Commonwealth Attorneys Act.

50:21 - And this court's cases interpreting them.

50:23 - Garcia and Briggs make clear that after 1970 78, the attorney general

50:30 - has no common law powers unless codified by statute going forward.

50:35 - Therefore, those provisions prohibit this court prohibit courts from inferring

50:40 - powers for the Attorney General that are not statutorily enumerated,

50:44 - and in other words, because the CPL has been interpreted

50:49 - in the context of other authorities, it has to be interpreted

50:52 - in the context of other authorities, including later enacted authorities.

50:56 - It was error for the Commonwealth Court to turn solely on what the General

50:59 - Assembly may have intended.

51:01 - In 1968, rather than making sense of all the law.

51:06 - Finally, I would like to focus on the Commonwealth Court's decision.

51:09 - Its misunderstanding that there was no reason to let the DA's actions proceed,

51:14 - because there was nothing left for the the district attorneys to recover.

51:18 - That is wrong on several fronts, the court

51:21 - found, because Philadelphia and Allegheny County

51:24 - signed on to the settlement agreement and released their claims

51:28 - that the district attorney's claims were also released.

51:32 - But Philadelphia and Allegheny County released

51:34 - their private claims under section 9.2 of the CPL.

51:39 - They cannot bring public enforcement actions under section four

51:44 - and therefore could not release such claims.

51:48 - So who is the money for?

51:51 - What's the DA's doing?

51:52 - What what's the purpose?

51:54 - If the the DA's action seeks civil penalties,

51:59 - that would then be used to further electorates.

52:07 - And for those and that.

52:11 - Their constituents who.

52:13 - Yes the people in those counties.

52:16 - But again what the the the Philadelphia, the Allegheny County, their claims

52:21 - that they released were claims for damages

52:25 - and these are civil penalties claims.

52:29 - What if Allegheny County said to the district attorney in Pittsburgh,

52:34 - we don't want you to file this,

52:38 - civil penalty claim.

52:40 - We have no interest in it.

52:41 - We don't want you to do it.

52:42 - Would they be bound by that?

52:46 - The. See,

52:47 - I don't think so, Your Honor, because the CPO gives the district

52:51 - attorney's a right to bring those civil penalty claims.

52:55 - Okay.

52:55 - And so then, likewise, the Allegheny County said,

53:00 - we want you to,

53:03 - settle this claim

53:06 - along the lines with the attorney general.

53:08 - They wouldn't be bound by by what the county of Allegheny wanted. The.

53:13 - That's correct, Your Honor, to be handled.

53:15 - And in fact, that's illustrated by what happened here.

53:18 - The attorney general himself recognized that the counties

53:20 - and the district attorneys are distinct entities

53:23 - with distinct claims, because he separately negotiated with

53:27 - both the counties to sign on to the agreement

53:29 - and the district attorneys separately, and for those counties

53:33 - and district attorneys who opted into the settlement agreements,

53:37 - they received separate payments, one to the district attorney

53:41 - and one to the respective county, and those were separate amounts of money.

53:46 - Under the settlement agreement, a number of different

53:51 - public interest laws across the Commonwealth,

53:54 - where an attorney may bring an action on behalf of a client,

53:58 - and if the attorney is successful, they themselves receive

54:03 - maybe payment of fines or, payment of costs and fees.

54:08 - But I'm just having a hard time wrapping my

54:13 - mind around the concept that the client doesn't control

54:17 - the litigation, that the attorney

54:20 - gets to make the decisions, and the litigation.

54:24 - I think here, Your Honor, it's

54:26 - a little different because the

54:29 - the client and the the client and the attorney

54:33 - and the plaintiff all are all wrapped up in that same individual.

54:39 - And the district attorneys are suing in their official capacity

54:45 - on behalf of their electorate, for the best interests of them.

54:49 - And, and so I don't think it's,

54:53 - yes, settlement is usually sorry,

54:56 - has to be approved by the client,

54:59 - but but

55:02 - there's no way to really do that when it's a claim

55:05 - on behalf of the electorate or your jurisdiction.

55:10 - And the I think the CPO in in

55:14 - authorizing district attorneys to recover,

55:18 - civil penalties envisions that, your honor.

55:21 - So this is in line with exactly what the statute,

55:25 - provisions on section C

55:28 - about section eight of the statute. Yes.

55:34 - Secondly, on the the, Commonwealth court's,

55:37 - rationale that there was nothing left here for the district attorneys to recover.

55:42 - That was also wrong,

55:43 - because the settlement agreements here are not a bar to the district

55:46 - attorney's recovery of civil penalties if their actions proceed,

55:50 - the settlement agreements expressly disclaimed

55:53 - that any of the settlement money was for the payment of fines or penalties,

55:58 - and so defendants have not paid any civil penalties

56:02 - or funds in settlement of civil penalties.

56:05 - So if the district attorney's actions were to proceed,

56:08 - there is no risk of double recovery against defendants for civil penalties.

56:14 - And finally, on the point of the nothing left to recover,

56:18 - the district attorney's also believe that the money recovered

56:21 - under the district attorney's actions will directly benefit their electorates

56:25 - because of the 2021 Fiscal Code amendment, which provides that the money recovered

56:30 - by the district attorney's goes to the district attorney's,

56:33 - not to the Commonwealth's opioid restricted account.

56:37 - Could you clarify something for me in the settlement agreements

56:41 - that the AG entered into?

56:44 - Were civil fines and penalties expressly excluded

56:48 - and regarded as resolved, that no, that they they

56:53 - the releases were to the maximum extent of the Attorney General's authority,

56:58 - but the settlement agreement explicitly excludes any recovery for fines

57:03 - and penalties, and says no portion of the compensatory restitution amount

57:08 - constitutes disgorgement, or is properly characterized

57:12 - as the payment of statutory or other fines,

57:16 - penalties, punitive damages, or other punitive assessments.

57:19 - So in your analysis, that issue was still wide open even after the settlement.

57:25 - That's correct, because they explicitly excluded that

57:28 - no money was paid for fines and penalties.

57:31 - So that leaves that open for that money to recover, be recovered

57:35 - in a couple action.

57:38 - Counsel.

57:39 - The AG in filing their complaint,

57:43 - in pursuit of a settlement, order being signed by the court.

57:48 - Their complaint includes their complaints

57:51 - to complaints include counts for nuisance.

57:55 - They have civil nuisance

57:57 - claims, in which they claim very broad damages to the,

58:03 - Did the district attorneys bring nuisance claims?

58:06 - No, they only brought, it was a single count complaint for both of them.

58:11 - Yeah.

58:11 - That's why, I just wonder,

58:15 - you know, it's very difficult to know, what?

58:18 - The settlement amounts were paid for, that the nuisance claims

58:21 - have extremely broad claims for damages involved, with them.

58:27 - And, you know, so it's really sort of unclear.

58:29 - I mean, obviously, both of those complaints

58:33 - and each of those counts had to be settled

58:37 - in the context of our disagreement.

58:39 - So, how do we know what damages

58:42 - were allocated to the, nuisance claims?

58:46 - Well, I think here, Your Honor.

58:48 - I'm not sure that's clear,

58:50 - but I don't think the court has to reach that for here, because, again.

58:54 - But it raises the issue of, you know, what?

58:58 - What claims, actually, what moneys were paid for

59:02 - in keeping with, your, you know, pointing out that there are specific

59:06 - exclusions of certain types of five,

59:10 - types of damages that weren't included.

59:13 - Well, and just to be clear, Your Honor, we don't think this court needs to reach

59:16 - that issue, right?

59:17 - That's that's an issue downstream.

59:19 - I couldn't agree with you more if the district attorney's

59:22 - actions proceed, then that would obviously have to be sorted out.

59:26 - But we think here it's crystal clear from the exclusion that, the language

59:31 - did not include fines or civil penalties such that, CPL action could proceed.

59:41 - All right.

59:41 - Any other questions from is Dorsey,

59:44 - have you concluded,

59:46 - if I could go on for more of the practical.

59:49 - But I'm happy to take a seat and ask the court to,

59:53 - urged the court to apply the Commonwealth,

59:58 - 864 the CPO as written, hold the attorney general

01:00 - 04.867 to his enumerated powers and reverse that judgment below.

01:00 - 06.536 Thank you very much.

01:00 - 08.538 And let's hear from, Mr.

01:00 - 11.541 Scrunchie, on behalf of the AG.

01:00 - 20.416 Good morning, Your Honors, Madam Chief Justice.

01:00 - 23.252 And may it please the court. My name is Michael Securency.

01:00 - 26.289 I am a senior deputy attorney general with the Pennsylvania Office

01:00 - 29.225 of Attorney General. I'm here representing appellate.

01:00 - 32.762 David W Sunday, jr, the attorney general of Pennsylvania.

01:00 - 36.833 I will be addressing the central issue in this appeal.

01:00 - 40.837 The attorney General's authority to settle a public KPL action

01:00 - 42.972 over the objection of a local Da.

01:00 - 46.109 Mr. John Hare here will be

01:00 - 49.112 addressing alternative arguments for a firm. It's

01:00 - 54.751 although the consumer protection law, the CPO authorizes both the attorney

01:00 - 59.389 general and a local district attorney to bring an enforcement action

01:00 - 04.394 on behalf in the name of the Commonwealth when there is a conflict between them.

01:01 - 07.864 The attorney general prevails over the local district attorney.

01:01 - 08.865 Why is that?

01:01 - 11.868 Don't you have to add a provision to the statute

01:01 - 17.340 that the General Assembly did not insert that would give you the super cession

01:01 - 21.010 authority that's entirely missing in section four.

01:01 - 24.480 The two district attorneys brought these actions

01:01 - 27.350 before the attorney general,

01:01 - 30.486 and you maintained that absent language

01:01 - 35.358 for super session, you can come in later and supersede

01:01 - 39.062 without even intervening

01:01 - 41.531 under the Commonwealth Attorneys Act.

01:01 - 43.199 Can you explain that to us?

01:01 - 44.033 Yes. Your honor,

01:01 - 45.134 I think the mistake that

01:01 - 48.171 my friends on the other side and I heard counsel repeated here

01:01 - 51.307 at the outset of his argument, is that let's start with the statute.

01:01 - 55.578 But we have to go a little bit back and start with the Pennsylvania Constitution.

01:01 - 58.214 As this court has said most recently.

01:01 - 02.685 And Cynthia's the constitutional language that the attorney general

01:02 - 06.189 is the chief law officer empowers the attorney general.

01:02 - 09.392 And so we start there.

01:02 - 11.360 Can we stop there?

01:02 - 14.497 It's he's empowered as provided by law.

01:02 - 18.468 There's not a roving law enforcement officer.

01:02 - 19.635 I agree, Your Honor.

01:02 - 22.772 There's there's some tension between the language in the Constitution

01:02 - 25.775 because it both empowers him as the chief legal officer, but

01:02 - 28.778 it also allows the General Assembly to,

01:02 - 32.048 legislate on his duties and on his powers.

01:02 - 33.416 There's no tension at all.

01:02 - 37.653 So you want to draw the general flavor or gestalt

01:02 - 41.457 of the thing from the chief law officer,

01:02 - 45.795 when it's when it's clear under the Constitution

01:02 - 49.232 that you only have such power as you get by statute.

01:02 - 54.303 Here you have the statutory authority to intervene, and you did not do it.

01:02 - 58.741 In number two, you share the opportunity

01:02 - 01.844 to bring an action under the CPO.

01:03 - 04.914 And they did it first, and then you came along and did it.

01:03 - 09.886 And you don't have a power to supersede them in any statute that I've seen.

01:03 - 11.921 That applies in this case.

01:03 - 17.293 Do you draw or we're relying on the Constitution, but also, the,

01:03 - 22.698 the it's not explicit in the CPO, but it's ambiguous because between,

01:03 - 26.469 the district attorney and the attorney general,

01:03 - 30.540 when it comes to a public election, one party must prevail over the other.

01:03 - 35.378 And so we have to apply the typical rules of statutory interpretation.

01:03 - 38.681 When a statute is ambiguous, why does one party have to prevail

01:03 - 41.784 over the other when the specific statute skims

01:03 - 45.555 both of these parties the ability to file passage,

01:03 - 48.658 it gives them the authority to bring a lawsuit,

01:03 - 53.029 but it does not resolve explicitly what happens when there's a conflict

01:03 - 54.163 between the two of them.

01:03 - 57.200 And we can see, some of the conflicting results

01:03 - 00.203 that might happen if they're both bringing an action,

01:04 - 04.073 in two different courts, we would see potentially

01:04 - 07.276 conflicting litigation strategies, conflicting,

01:04 - 10.913 interpretations of statute and potentially conflicting results,

01:04 - 14.951 because the attorney general is going to bring an action in the Commonwealth Court.

01:04 - 18.421 And we have the DA's bringing their action in the Court of Common Pleas.

01:04 - 19.388 And I think this gets into

01:04 - 22.925 some of the consequences of either parties interpretation,

01:04 - 27.063 which is one of the factors you can consider under section 1921

01:04 - 29.632 of Statutory Construction Act. So I agree with you.

01:04 - 32.635 It sounds like an argument for the General Assembly.

01:04 - 35.705 It sounds like a simple fix.

01:04 - 38.941 You go to the General Assembly and if you have such a great argument,

01:04 - 43.579 just get them to amend the statute that gives you your authority.

01:04 - 46.015 And also the CPO.

01:04 - 49.819 But it seems to me that what you're doing is coming to us

01:04 - 53.789 and asking us to do that work for you.

01:04 - 57.660 We're not authorized to change the language of the statute.

01:04 - 01.497 The there's nothing in this statute, either the CBL

01:05 - 04.767 or the Commonwealth Attorneys Act,

01:05 - 09.372 that authorizes you to supplant them.

01:05 - 12.608 And this concern about recoveries or downstream effects

01:05 - 14.543 is not the issue before us.

01:05 - 15.811 In any event,

01:05 - 19.949 if there's some issue about the there's no money left in the till or there's

01:05 - 24.520 some enforcement issue, that's something a trial court can handle down the line.

01:05 - 29.091 Can you react to that something?

01:05 - 31.260 Yes. Justice Wecht again, I agree with you.

01:05 - 34.230 It's not explicit in the statute, but I think

01:05 - 38.134 as the unanimous Commonwealth court concluded, the statute is ambiguous.

01:05 - 41.971 And then we look to the typical rules of statutory interpretation, including

01:05 - 46.208 what was the state of the law when the CPO was enacted.

01:05 - 49.578 That's the black letter before you before you go to statutory construction.

01:05 - 52.515 Can you explain the ambiguity? Yeah. Thank you.

01:05 - 55.518 The ambiguity, I think, flows from two different sources, Your Honor.

01:05 - 58.587 First, because the the Constitution.

01:05 - 00.589 No, no, I don't talk about the Constitution.

01:06 - 03.859 Well, Your Honor, the ambiguity in the statute, the statutory language.

01:06 - 07.196 I mean, you're you're chuckling, but I it's it's

01:06 - 11.300 we looked at the statutory language to discern ambiguity.

01:06 - 14.804 We don't look to external sources to discern ambiguity.

01:06 - 15.938 I disagree, Your Honor.

01:06 - 19.075 I think we have to start with the constitutional language.

01:06 - 21.911 That's a required constitutional ambiguous.

01:06 - 25.948 No, I'm not saying I'm saying the Constitution when read as a in light

01:06 - 29.185 when this excuse me, when the statute and CPO come off

01:06 - 30.186 Attorneys Act is read in

01:06 - 33.990 light of the Constitution, there's an ambiguity because it sets forth

01:06 - 38.461 that the attorney general is the chief full officer, as provided by law.

01:06 - 43.366 You want to take an unambiguous statute and try to make it ambiguous

01:06 - 47.069 by importing some spirit of the law from the Constitution.

01:06 - 48.204 Is that what you're trying to do?

01:06 - 49.238 Not at all. Your Honor.

01:06 - 52.108 I, I we have to read the Constitution.

01:06 - 55.211 We have, excuse me, have to read a statute in light of the Constitution.

01:06 - 58.014 What we're I don't understand where you're getting that principle from.

01:06 - 59.982 I mean, I've been doing statutory construction for a while.

01:06 - 01.283 I've never heard that. Well,

01:07 - 02.952 that's the black.

01:07 - 05.087 That was my understanding of the black letter law. You're on it.

01:07 - 07.857 And the Constitution sets forth the framework of our government.

01:07 - 09.325 So establishes

01:07 - 12.595 that you could argue that the statute is unconstitutional right there.

01:07 - 15.297 You could do some provision of the Constitution.

01:07 - 18.601 But I have I don't recall ever seeing an analysis

01:07 - 22.138 of a statute on ambiguity based on.

01:07 - 25.841 Well, well, let me maybe I should take it from a different angle, Your honor, this

01:07 - 30.379 the Constitution, limits what the general Assembly can do.

01:07 - 32.314 So we have to read it in light of that.

01:07 - 34.216 So with the you're you're obviously.

01:07 - 35.484 I see what you say you're.

01:07 - 38.487 But you have to presume the statute is constitutional.

01:07 - 39.688 You have to say I'm presuming so.

01:07 - 42.058 So let's presume it's constitutional.

01:07 - 43.726 I mean, just tell me what confusing.

01:07 - 45.561 I'm not challenging the constitutional.

01:07 - 47.863 I'd say Mr. Sports. Yeah. I'm sorry.

01:07 - 48.764 Let him finish.

01:07 - 51.767 I'm I'm I'm I apologize, I understand.

01:07 - 54.870 Let's let's just agree that for a moment

01:07 - 58.074 we disagree that you should, that you should start with the Constitution.

01:07 - 00.509 Let's start with the statute.

01:08 - 03.813 Is there any ambiguity in the statute?

01:08 - 05.448 Yes. That was my next point, Your Honor.

01:08 - 07.716 After I start with that, after the Constitution,

01:08 - 09.518 I wouldn't want to forget the Constitution.

01:08 - 14.056 The ambiguity is, as I think I mentioned, and I apologize if I've repeated myself.

01:08 - 16.392 That,

01:08 - 19.795 the inherent ambiguity is because they both can bring an action

01:08 - 23.632 that's not ambiguous, that just says that the legislature wanted

01:08 - 25.601 both of them to have that power.

01:08 - 28.537 What's what part of or don't you understand?

01:08 - 30.439 There's nothing ambiguous about the word,

01:08 - 34.443 or it just means in the alternative, either the AG or the Da can do it.

01:08 - 37.646 And if they both do it, then what happens when they have a conflict?

01:08 - 40.649 Because we wouldn't expect the, the,

01:08 - 44.887 the General Assembly to require absurd results.

01:08 - 48.124 And I and as I think what what is the absurd result, the absurd

01:08 - 53.028 result we have here is because the AG decided to ignore

01:08 - 57.199 the fact that there were pending lawsuit

01:08 - 01.370 brought by district attorneys in courts of common, please.

01:09 - 02.738 I mean,

01:09 - 06.575 that is where the action was.

01:09 - 10.279 I mean, that's why it's so odd to refer to this as super session,

01:09 - 14.383 because super session would imply that you go to where the lawsuits

01:09 - 18.087 were filed and say, Your Honor, we are superseding here.

01:09 - 22.658 This was just totally ignoring the fact that district attorneys

01:09 - 26.262 exercise their rights under the Unfair Trade Practices Act.

01:09 - 30.032 That's why this confusion resulted.

01:09 - 31.800 I think Madame Chief Justice put it best.

01:09 - 35.771 There's a de facto, super session here because there's nothing left

01:09 - 38.440 for the for the constituents.

01:09 - 40.042 So there's no there's no super

01:09 - 43.646 no super session had the power under the Commonwealth Attorneys Act.

01:09 - 48.083 You had the power to intervene at any time if you were concerned about the

01:09 - 52.721 so so-called absurd results, all you had to do is intervene

01:09 - 54.990 under the Commonwealth Attorneys Act

01:09 - 58.494 instead of trying to invent a super session power that you don't have.

01:09 - 01.096 But I think there's there's two responses to that justice work.

01:10 - 05.434 One is we went to the Commonwealth Court to get a Commonwealth wide ruling.

01:10 - 11.073 We were required to intervene in those actions in the Court of Common Pleas.

01:10 - 15.144 We have the discretion to and we don't want to go into one court

01:10 - 16.946 and have to go into more than one court.

01:10 - 19.949 So you pretending that the company's actions.

01:10 - 22.918 I'm sorry, I'm sorry.

01:10 - 27.223 It's as if you're pretending that the Common Pleas actions did not.

01:10 - 30.226 Well, I think you also may see us go into the

01:10 - 33.229 after this court rules go into the Court of Common Pleas.

01:10 - 37.633 If we have a favorable ruling, and saying you can no longer proceed.

01:10 - 41.503 And I think you'll see the drug companies do that as well on alternative.

01:10 - 43.472 Reasons.

01:10 - 48.010 So the fact that we haven't done it now, you need the power to supersede

01:10 - 51.313 to do that and, and and have the power.

01:10 - 56.252 And it comes from what ambiguity in either the Commonwealth Attorneys

01:10 - 59.855 Act or the Unfair Trade Practices Act.

01:11 - 03.826 Start with the Commonwealth attorneys of the Commonwealth Attorneys Act

01:11 - 07.830 gives the, the Attorney General broad

01:11 - 10.833 primary authority in a civil action.

01:11 - 15.271 It also establishes, requires the attorney general

01:11 - 19.575 to appoint a director of consumer protection, gives him the authority

01:11 - 21.243 to make rules and regulations.

01:11 - 25.981 So I think that sets forth that are some indicators, again,

01:11 - 30.753 not explicit indicators that the General Assembly expected him to have.

01:11 - 31.787 Yeah.

01:11 - 34.857 But then they but then they, then they I agree with you.

01:11 - 37.426 If all you had was the Commonwealth Attorneys Act, we wouldn't be here.

01:11 - 41.830 But then they passed a specific statute which overrides the general

01:11 - 43.966 carving out an

01:11 - 49.238 additional area for district attorneys to essentially exercise the power of suing

01:11 - 52.241 in the name of the Commonwealth in this particular area.

01:11 - 55.644 So, so the two can exist.

01:11 - 58.080 Both coexist. Right. Excuse me.

01:11 - 04.119 To be clear, Justice Robson, I, I think the, CPR was passed

01:12 - 07.956 before the Commonwealth Attorneys Act was passed, and it doesn't matter.

01:12 - 11.360 The specific overrides that in the event of a assuming there's a conflict.

01:12 - 12.261 And I don't think there is,

01:12 - 15.264 but assuming there's a conflict, the specific would override the general.

01:12 - 17.866 Right? Correct. And that's in the CPA. Right.

01:12 - 21.270 So is there a conflict between the attorney general, the Commonwealth

01:12 - 24.273 Attorneys Act and the,

01:12 - 26.642 Unfair Trade Practices Act, consumer protection law?

01:12 - 28.711 We have an argued that there's a conflict.

01:12 - 31.914 We've argued that they should be read in Perry material

01:12 - 35.517 so we don't see them as is conflict reading counsel.

01:12 - 40.756 In Perry materia in your construction would, would,

01:12 - 43.892 rewrite section four

01:12 - 47.296 to delete the words or a district attorney, would it not?

01:12 - 50.899 No, no, no, of course, have the authority to bring an action.

01:12 - 52.568 We're here on limited grounds

01:12 - 55.871 about what happens when there's a conflict between them.

01:12 - 00.709 So I it's not asking this court to to rewrite the statute as it did.

01:13 - 04.713 You know, in other words, under that reading a Da

01:13 - 09.718 would bring an action as has happened here, the DA's brought actions,

01:13 - 11.820 prior to

01:13 - 14.890 the AG, they could litigate their cases.

01:13 - 19.928 And then whenever by fiat, an attorney general decided to swoop in

01:13 - 23.198 and knock them out and just take over the case,

01:13 - 25.968 you could do that even though there's absolutely no

01:13 - 29.271 statutory language that gives you that authority while you're on.

01:13 - 31.840 I disagree about the statutory language, but in terms of limits,

01:13 - 35.811 but in terms of the language, I said it's not explicit, Your Honor.

01:13 - 36.678 It's implicit.

01:13 - 37.413 That's our argument.

01:13 - 40.382 It's based on reading several different materials the Constitution,

01:13 - 43.118 Commonwealth Attorneys Act and and the CPA.

01:13 - 44.753 But there are limits on this.

01:13 - 49.825 We're not if the district attorney had brought an action, litigated it to,

01:13 - 52.995 final judgment, exhausted all appeals, and the attorney general

01:13 - 54.663 had not stepped in at that point.

01:13 - 56.165 That, of course, would be final.

01:13 - 57.433 So you're telling this court,

01:13 - 59.168 under that

01:13 - 02.171 scenario you just talked about that

01:14 - 06.775 the DA's on the strength of the express language of section

01:14 - 10.879 four of the CPA of bring these actions, litigate them,

01:14 - 14.683 do whatever is necessary to press those cases forward.

01:14 - 19.087 And then whenever you want, based not on any statutory

01:14 - 22.090 language, but based on your,

01:14 - 24.226 flavor from the ether

01:14 - 28.230 of the Constitution and your role as chief law officer.

01:14 - 31.366 You can just come in and knock them out and take over the case.

01:14 - 35.070 Yes. Unless there's been a final judgment and the appeals have been exhausted.

01:14 - 37.739 That's our position. Yes.

01:14 - 41.043 And under your paradigm as well, I'm assuming if the attorney general

01:14 - 44.012 had brought an action first,

01:14 - 46.381 the district attorney

01:14 - 50.552 would be barred from exercising his

01:14 - 54.490 or her authority under the Unfair Trade Practices Act because you filed first.

01:14 - 59.428 I don't think it's a question of who files first.

01:14 - 02.431 It's the our position is that it's the fact that the attorney general

01:15 - 05.501 is the chief law officer and represents all Pennsylvanians.

01:15 - 08.737 He's the chief law officer for for all Pennsylvanians, not it doesn't

01:15 - 13.075 end at Allegheny County, but if that's so, what if the so so there's

01:15 - 16.411 I guess I'm asking you the result, though I don't know, asking you the basis of it.

01:15 - 20.749 But in your view, if the attorney general, if the attorney general

01:15 - 25.220 brought an action just for just relating to damages

01:15 - 28.624 to the Commonwealth in the city and County of Philadelphia,

01:15 - 32.861 that initiation of that action would preclude the district

01:15 - 36.632 attorney of Philadelphia from exercising his authority under that section.

01:15 - 37.466 Correct.

01:15 - 40.502 But do you agree that there's nothing in that section that says that?

01:15 - 41.970 I agree, it's not explicit.

01:15 - 45.807 We were relying on an ambiguity, as I said, and we believe that apply

01:15 - 49.578 ambiguity is that the statute doesn't address the circumstance.

01:15 - 50.579 Right.

01:15 - 51.947 It doesn't address that circumstance,

01:15 - 56.552 because at the time the CPL was enacted in 1968 and 1976,

01:15 - 00.956 the common law provided that the attorney general could supersede.

01:16 - 05.260 So there would have been no reason for the legislature to address that issue.

01:16 - 06.528 And of course you can.

01:16 - 07.429 I'm not asking the court

01:16 - 11.300 to incorporate the common law powers, but what I am asking the court to do

01:16 - 14.703 is to apply the ordinary rules of statutory interpretation,

01:16 - 20.576 to look at the state of the law when the legislature enacted

01:16 - 25.480 that legislation, just as you've done in the past, has been amended since then.

01:16 - 25.747 Right.

01:16 - 29.618 The General Assembly is well aware we're not in the common law crimes anymore.

01:16 - 32.521 Right? We're not in the common law era.

01:16 - 33.655 Correct. Right.

01:16 - 37.225 So that that why does your canon apply, given that there's

01:16 - 38.827 been legislative revision?

01:16 - 42.331 I think because

01:16 - 46.134 we, read it in material with the Commonwealth Attorneys Act

01:16 - 49.938 also that when the legislature enacted the Commonwealth Attorneys Act,

01:16 - 55.243 the attorney general was giving broad primary authority over civil cases.

01:16 - 58.113 There was no mention of the district attorney

01:16 - 00.983 with respect to civil cases in the Commonwealth Attorneys Act.

01:17 - 06.321 And of course, the, the legislature knew how to give the Da super,

01:17 - 09.391 super session power as it did on the criminal side.

01:17 - 13.462 Where's the broad primary authority over civil cases that the attorney general,

01:17 - 17.065 prosecutes and defends actions

01:17 - 20.068 for the Commonwealth in section 2 or 4?

01:17 - 23.271 And it's up to the attorney general,

01:17 - 26.341 to decide when there's a conflict with other attorneys who represent

01:17 - 30.112 the Commonwealth Pacific, specifically the Office of General Counsel,

01:17 - 31.647 that it's the attorney general who controls.

01:17 - 36.084 So you're saying that the Attorneys Act, which came after the,

01:17 - 39.788 CPL CPL

01:17 - 42.424 now cabins

01:17 - 46.628 the express authority of the district attorney in the CPL

01:17 - 50.499 to only being able to bring actions in the name of the Commonwealth

01:17 - 54.002 if the the Attorney General gives them permission to do it,

01:17 - 56.271 we don't have to give them permission.

01:17 - 59.374 But if the attorney general were to come in, then where's

01:17 - 02.377 the come in part in the Commonwealth Attorneys Act,

01:18 - 03.812 Your Honor?

01:18 - 07.182 Again, it's implicit in the statute that they have the law

01:18 - 09.284 in the Commonwealth Attorneys Act is that

01:18 - 12.187 I think the only one where they become, in part, is where they intervene.

01:18 - 14.856 Right? Yes. They have the discretion to intervene.

01:18 - 16.491 Where's the other come? In part.

01:18 - 17.793 Well, they could as we did here.

01:18 - 20.629 We could go to the Commonwealth Court and get a Commonwealth wide ruling.

01:18 - 24.499 Where does where does that appear in the Commonwealth?

01:18 - 26.101 Attorneys have.

01:18 - 28.103 Well, because the attorney general represents

01:18 - 32.908 the Commonwealth, he's required to, bring an original jurisdiction action.

01:18 - 37.012 Why would the General Assembly permit you to intervene on the two of them?

01:18 - 39.514 The true permit.

01:18 - 40.982 We're permitted to a. I'm sorry.

01:18 - 42.617 I'm not sure I understand the question.

01:18 - 44.519 The question is, the question is if you.

01:18 - 45.587 I'm sorry. Justice.

01:18 - 47.422 The question is

01:18 - 51.359 if the General Assembly said you can intervene and that's your remedy,

01:18 - 55.297 why do you need this implicit authority to also bring your own action?

01:18 - 00.302 Isn't that the will of the General Assembly as your remedy is intervention?

01:19 - 01.870 Well, they said, we may intervene.

01:19 - 03.405 We have the discretion to intervene.

01:19 - 05.273 You may you may or may not. But they didn't say.

01:19 - 07.142 And if you don't, you can also do this.

01:19 - 11.213 But by going to the Commonwealth Court we get a Commonwealth wide ruling

01:19 - 14.983 that's effective, that controls is is binding

01:19 - 18.720 on all the Court of Common Pleas so that that's what happened in this case,

01:19 - 20.756 why we didn't go into the Court of Common Pleas.

01:19 - 23.792 It was because we wanted a Commonwealth wide ruling.

01:19 - 27.696 But but

01:19 - 31.533 that required you to ignore the fact that there were actions

01:19 - 34.536 pending in the Court of Common Pleas

01:19 - 37.873 brought by district attorneys.

01:19 - 40.742 I mean, just as a matter of just comedy.

01:19 - 43.512 I mean, this sort of which struck me about this case.

01:19 - 47.849 There's this bulldozer aspect to what happened here.

01:19 - 53.555 I mean, this notion of not accepting the fact,

01:19 - 57.359 I'm sure you're aware that these actions were brought, in these other

01:19 - 00.362 counties, just deciding not to deal with them

01:20 - 03.498 ravaging, but,

01:20 - 06.301 but and and claiming in a settlement agreement

01:20 - 10.438 that you had the authority to settle all of these claims.

01:20 - 14.276 I mean, that that's, you know, something to discuss with the,

01:20 - 20.215 counsel for the settling defendants, but, it's, you know, I think we're here

01:20 - 23.919 in large part, because here was a ball that was here instead of,

01:20 - 27.122 attempting to bring the door open.

01:20 - 28.690 I don't think there was a bulldozer around.

01:20 - 32.427 This started back in June of 2017 with Attorney General Shapiro,

01:20 - 36.364 who started a nationwide investigation and then worked towards a settlement.

01:20 - 39.434 It wasn't until a year later that the DA's brought their action.

01:20 - 40.435 I'm not the DA's.

01:20 - 41.102 Excuse me, D.A.

01:20 - 45.006 Crespi you brought it was greater than that, that you brought your action.

01:20 - 47.776 So we obtained a settlement first.

01:20 - 50.212 They sued first.

01:20 - 53.748 They sued first, and then you tried to bulldoze later

01:20 - 56.084 without having a statutory bulldozer.

01:20 - 58.353 Isn't that what happened?

01:20 - 00.589 Your Honor, we let me just.

01:21 - 03.091 I mean, yes, they did bring their action in November.

01:21 - 07.896 Da Krasner to these specific brought his action in November of 2018.

01:21 - 12.033 But we but Attorney General Shapiro then had been participating

01:21 - 15.537 in a nationwide investigation back in June of 2017.

01:21 - 19.107 Then in October of 2019, we,

01:21 - 23.345 our office announced, a support for a framework for settlement.

01:21 - 28.283 And then in February of 2021, Da Zappala, brought his claim.

01:21 - 31.453 So I isn't that is right to bring the claim?

01:21 - 33.855 Not really.

01:21 - 38.393 I mean, even everything that you've explained, it appears that the legislature

01:21 - 42.030 with the consumer protection law seem to recognize

01:21 - 45.934 that there may be, in certain circumstances, local interests

01:21 - 49.371 that had to be protected by the district attorney.

01:21 - 50.872 So. Right.

01:21 - 54.276 I don't I don't understand why that's, a negative.

01:21 - 58.613 Well, Your Honor, and I think this gets into one of the issues that we've raised,

01:21 - 01.816 the consequences of a particular interpretation.

01:22 - 05.820 This particular case is not a question of local concern.

01:22 - 10.158 The opioid crisis affected all of Pennsylvania, all of the nation.

01:22 - 15.463 So we're not seeing the kind of different effects in terms of, who suffered.

01:22 - 17.832 The effects were the same.

01:22 - 20.068 And pencil and Philadelphia thing

01:22 - 23.538 that you mentioned that because when you look at the manner

01:22 - 27.842 in which the settlement proceeds were distributed through the trust,

01:22 - 31.613 it was done on a county by county basis,

01:22 - 36.685 implicit in which is the fact that there were claims

01:22 - 40.822 extent for damages in each of those counties.

01:22 - 46.161 The Commonwealth of Pennsylvania got a minor portion of the settlement.

01:22 - 50.265 The vast bulk of the settlement proceeds

01:22 - 56.004 went to each of the individual counties, some through their district attorneys,

01:22 - 59.774 some through the county commissioners or their other governing body.

01:23 - 03.745 So, I mean, even the settlement in this case,

01:23 - 07.482 recognizes the fact that there are distinct

01:23 - 10.485 local interests that play here, does it not?

01:23 - 13.755 You want I would say it this way, of course there are.

01:23 - 14.990 Philadelphia is a major city.

01:23 - 18.927 It had more people suffer, so it did receive a disproportionate amount.

01:23 - 20.295 I'm not looking at Philadelphia.

01:23 - 24.532 I'm looking at every county Fayette County, Union County, Tioga County.

01:23 - 28.370 By coming county, each county, each county

01:23 - 32.407 was allocated funds based upon the local impact.

01:23 - 36.311 I'm assuming recognizing the local impacts,

01:23 - 41.182 a local interest attendant to the opioid scourge

01:23 - 45.320 and the attorney General is the person who's in the best, in the best position

01:23 - 48.456 to represent the Commonwealth.

01:23 - 51.726 Why not a local district attorney who's only concerned about his local?

01:23 - 55.030 Why is this in the best position to decide

01:23 - 58.299 what the best interest is?

01:23 - 00.602 In Allegheny County,

01:24 - 05.206 because he's looking at it from a Commonwealth wide perspective.

01:24 - 07.509 He's not looking at it, just a parochial interest.

01:24 - 10.512 He's looking at what's going to benefit all the people the best,

01:24 - 13.548 because he is, of course, elected by all the people in Pittsburgh.

01:24 - 15.817 Exactly. I agree with the entirely.

01:24 - 21.189 And that's why the Unfair Trade Practices Act allows DA's to bring an action

01:24 - 25.560 based upon their perspective of what a local impact is.

01:24 - 27.662 Yes. But the

01:24 - 31.032 as I've as I've said throughout this, the the attorney general has the right to,

01:24 - 34.169 supersede him based on,

01:24 - 37.439 an ambiguity in the statute and based on the Pennsylvania Constitution.

01:24 - 37.939 You agree?

01:24 - 39.808 Council do

01:24 - 42.811 we we only get to wade into this,

01:24 - 47.582 this calculus about

01:24 - 51.052 who serves the best interest and who's better qualified

01:24 - 54.155 to pursue the Commonwealth's interest

01:24 - 57.158 or the public welfare, etc., etc..

01:24 - 00.095 If there's an ambiguity,

01:25 - 03.098 if we read if we read the CPO,

01:25 - 07.235 to say what it says, the attorney general or a district attorney,

01:25 - 11.172 and we read that and say it doesn't it doesn't strike us as ambiguous.

01:25 - 14.275 You don't get to make this argument at all, do you?

01:25 - 15.376 Yes. You're right. I agree with you.

01:25 - 17.479 We're relying on an ambiguity in the statute.

01:25 - 19.013 And as I

01:25 - 22.016 said, I, I don't want to repeat myself. So,

01:25 - 25.286 are we've relying on ambiguity that begins

01:25 - 28.289 with reading the Constitution as a backdrop?

01:25 - 32.427 When reading these other statutes and,

01:25 - 34.863 the statutes that I've mentioned already,

01:25 - 37.832 that I think create a resolve that ambiguity,

01:25 - 40.969 when you apply the ordinary rules of statutory interpretation,

01:25 - 44.906 I think I've, I've advanced all my points, Your Honor, and I,

01:25 - 48.576 if there's any other questions otherwise,

01:25 - 51.913 I think, I, I, I just want to mention one thing that I remember.

01:25 - 54.182 I'm sorry, Your Honor, that my friends on the other side,

01:25 - 57.685 if the I think either Justice Mundy or just Stockard asked this question

01:25 - 02.257 if if, the DA's were to recover penalties, civil penalties,

01:26 - 04.893 those would be this has never happened before

01:26 - 07.762 because they have an exercise this authority ever in 40 years.

01:26 - 11.933 But, if they were, those would be payable to the Commonwealth under the,

01:26 - 15.570 under the CPA, which would go to the general fund.

01:26 - 18.773 And so unless there's other any other questions, I'll turn it over to Mr.

01:26 - 19.707 Hare.

01:26 - 25.280 This is an announcement to 79 28181 with,

01:26 - 27.949 money received by the county.

01:26 - 30.818 And it is for local government and agencies comment,

01:26 - 34.189 including the district attorney arising from the claim

01:26 - 38.259 concerning parking, manufacturing shall promotion, distribution,

01:26 - 42.297 shall not be the funds of the Commonwealth

01:26 - 45.300 and shall be the property and shall not be deposited.

01:26 - 49.237 But when that goes directly in conflict with what you just.

01:26 - 52.240 Yeah, I don't think it does, Your Honor, because under the,

01:26 - 54.909 under the consumer protection law,

01:26 - 57.579 the only, remedies that

01:26 - 02.016 in a public action that, a local district attorney

01:27 - 05.453 could recover are injunctive relief, which is non-monetary,

01:27 - 09.891 restitution, which goes to the victim and then,

01:27 - 13.161 civil penalties, which are, again, as I said, payable to the Commonwealth.

01:27 - 17.332 The fact that this statute became effective after your settlement

01:27 - 19.334 in power, then if.

01:27 - 21.936 No, I think

01:27 - 26.140 I think I think no, I think that's referring to, either moneys that would had

01:27 - 30.712 already been received or, money that would come from a private CTL action.

01:27 - 34.015 And I'm a little confused and I apologize, but,

01:27 - 38.419 if the d-a's action results

01:27 - 43.224 in, funds in damages, civil penalties,

01:27 - 47.595 he has sued on behalf of the county.

01:27 - 50.632 And you're saying even though it's

01:27 - 53.768 Allegheny County or Philadelphia County, that's the client.

01:27 - 57.972 Those penalties go to the entire Commonwealth through the general fund?

01:27 - 00.074 Yes. In the CPO right of the CPO.

01:28 - 03.077 That's just based on the language in section two.

01:28 - 07.115 201.8, I believe you're on.

01:28 - 10.118 I'm not sure that, but it does say that they're payable to the Commonwealth.

01:28 - 12.120 Thank you.

01:28 - 13.588 Any other questions for Mr.

01:28 - 15.890 Square and say thank you so much.

01:28 - 16.491 Now, Mr.

01:28 - 20.161 Hare, we'll bring it on home with the perspective of the,

01:28 - 23.131 pharmaceutical companies. No. No pressure.

01:28 - 24.632 Good morning, Madam Chief Justice.

01:28 - 26.434 Normally you're arguing against Mr.

01:28 - 28.369 Becker, and, Mr.

01:28 - 30.872 Becker is here, but not participating.

01:28 - 33.141 He'll tell me you caught us off guard.

01:28 - 34.676 He'll tell me what? I messed up later. Here.

01:28 - 37.612 May it please the court, John Hare.

01:28 - 42.150 And with me is William Patrick Gallo and Lane Gallen for the pharmaceutical

01:28 - 44.986 manufacturers and distributors referenced in the briefs

01:28 - 47.989 as the settling defendants that we've talked about your honors,

01:28 - 52.927 we obviously agree with the unanimous on Commonwealth Court

01:28 - 56.731 decision that the attorney general does have the authority.

01:28 - 58.933 And ultimately, I think this is an issue

01:28 - 02.570 of respect of authority, super session, de facto degree.

01:29 - 05.873 It really is to settle all

01:29 - 09.477 public CPO claims for the entire Commonwealth,

01:29 - 14.882 including the subset of the Commonwealth represented by the DA's in this case.

01:29 - 18.753 And if Your Honor is ultimately agree with that, than the alternative arguments

01:29 - 19.821 we've raised,

01:29 - 24.092 release, raised to the court in the one satisfaction rule ultimately are moot.

01:29 - 26.627 And that happened in the Commonwealth Court.

01:29 - 28.463 And if that obviously happens, that's fine.

01:29 - 30.965 So I'll be brief.

01:29 - 35.036 And I can I just it's just the portion, of course, I'm gonna use the word subset.

01:29 - 39.273 Do you think a de is a subset of the OAG?

01:29 - 44.412 I do not think the De is, Your Honor, but I think the party represented by the Da.

01:29 - 47.415 And this is a crucial point that I think we're overlooking here.

01:29 - 49.484 They're representing the same party.

01:29 - 51.419 These are representative claims.

01:29 - 54.822 So literally the public of Philadelphia and Allegheny County,

01:29 - 59.327 which are the parties in this EPL claim, are a subset of the Commonwealth public.

01:29 - 01.062 These are public claims.

01:30 - 02.697 These are not private actions.

01:30 - 05.299 You think that the D.A.

01:30 - 09.237 of Allegheny County works for the county executive?

01:30 - 10.471 And do you think the D.A.

01:30 - 12.473 of Philadelphia works for the mayor?

01:30 - 16.611 I do not, Your Honor, but I think you're getting to the participation,

01:30 - 20.148 the subdivision agreements that made the release sores.

01:30 - 24.619 And it wasn't the mayor or the county executive

01:30 - 28.689 only that joined the ag settlement of these public claims.

01:30 - 33.394 The participation agreements incorporate the settlement agreement,

01:30 - 37.265 which define release source not only as the elected officials,

01:30 - 41.102 but the people who can bring claims by and through them,

01:30 - 44.138 not public claims, not private claims.

01:30 - 46.574 All claims. Is is this an issue that,

01:30 - 48.643 because

01:30 - 51.646 brass tacks what I think you're talking about

01:30 - 57.051 are the implications for the settlement kitty downstream.

01:30 - 01.088 Are these issues to be sorted out by a trial court

01:31 - 04.559 and not with the,

01:31 - 07.929 broad sweeping, super session

01:31 - 11.232 invention that the Commonwealth Court did here on the front end?

01:31 - 15.336 I don't think so, Your Honor, because this is a pure question of law

01:31 - 19.273 with respect to the ambiguity that the court has asked so much about.

01:31 - 19.774 It's true.

01:31 - 24.645 The UTP says an AG or a Da can bring a claim, but it doesn't address

01:31 - 28.216 what happens when they disagree on the resolution of the claim.

01:31 - 32.753 You can't proceed and settle a claim only one can happen.

01:31 - 34.722 And that's the dispute in this case.

01:31 - 36.624 Who gets to decide that?

01:31 - 38.192 Well, that's a capacity.

01:31 - 39.794 That's a capacity to settle.

01:31 - 45.032 And isn't that more appropriately addressed when the settlement

01:31 - 48.002 is attempted to be enforced in the Delaware County action?

01:31 - 52.039 No, Your Honor, the Delaware County actions have been state.

01:31 - 54.575 We were sued in the Commonwealth Court.

01:31 - 57.745 The Commonwealth Court decided I I understand, but

01:31 - 01.415 but I mean oh, okay, I get that, but

01:32 - 05.086 I'm not saying that the Commonwealth Court was wrong place

01:32 - 08.489 to get a declaratory judgment, which is essentially what you got.

01:32 - 12.760 I'm just saying, if you're if we put aside the super session

01:32 - 14.862 paradigm, this is just a case

01:32 - 17.865 about whether a settlement agreement is enforceable or not.

01:32 - 21.235 If you get past correct, Your Honor, if you get past super session,

01:32 - 24.972 there are, in our view, respectfully very strong reasons

01:32 - 27.008 that release race to you to court.

01:32 - 30.811 And, and, the one satisfaction will clearly apply here

01:32 - 32.580 based on the settlement.

01:32 - 34.382 But we don't get to Delaware County.

01:32 - 37.451 This was properly litigated in the Commonwealth Court.

01:32 - 41.889 The private actions filed by Philadelphia and Allegheny County were dismissed

01:32 - 43.190 in Delaware County.

01:32 - 44.492 These were only stayed

01:32 - 48.095 because the issue was teed up and decided in the Commonwealth Court.

01:32 - 50.164 And the district attorneys had a part of this.

01:32 - 50.731 They've acted

01:32 - 54.335 as though they didn't have any say in the attorney general's settlement.

01:32 - 56.470 They were invited to participate

01:32 - 00.341 as such as the participating subdivisions, which every other day did.

01:33 - 01.576 They didn't want the deal.

01:33 - 02.243 They didn't like the deal.

01:33 - 05.313 But can I ask you get rid of statute for a second?

01:33 - 08.883 In the name of the Commonwealth

01:33 - 12.086 is pretty ancient language.

01:33 - 15.990 There are a lot of cases going back to the 1800s

01:33 - 18.993 that talk about actions in the name of the Commonwealth,

01:33 - 22.964 and the ones that I have seen refer to,

01:33 - 27.001 saying that the legal plaintiff

01:33 - 30.271 is not the Commonwealth, the legal plaintiff is

01:33 - 33.574 the person who brings the action in the name of the Commonwealth.

01:33 - 37.612 Why shouldn't that principle be brought forward for this act?

01:33 - 40.948 To recognize that although bringing it in the name of the

01:33 - 44.518 Commonwealth, the legal plaintiff is in fact the district attorney?

01:33 - 46.020 Yeah.

01:33 - 47.221 Your honor, it depends.

01:33 - 51.492 There are cases certainly like the False Claim Act cases which authorize

01:33 - 55.096 a private claim by a person, a quote unquote person.

01:33 - 59.734 Section four of the KPL is quintessentially a public claim.

01:34 - 01.268 To remove any doubt,

01:34 - 05.172 the legislature said these claims are brought in the public interest.

01:34 - 08.209 They're not brought by district attorney.

01:34 - 12.013 They're brought by AG's or DA's, but they're not in the name of,

01:34 - 15.850 as this court said in the Shapiro versus Golden Gate case a handful of years ago,

01:34 - 21.255 the the Commonwealth is the person an interest in a public KPL claim

01:34 - 25.893 because the other half of the statute, section nine, is about private claims.

01:34 - 29.697 So in the name of combined with and we respectfully keep

01:34 - 31.632 forgetting about the other part of that sentence,

01:34 - 35.336 it's brought in the public interest in in the name of the Commonwealth.

01:34 - 38.973 So you would distinguish the ancient cases because those cases involve,

01:34 - 40.574 purely

01:34 - 43.577 private interest cases brought in the name of the Commonwealth,

01:34 - 47.481 where the legal plaintiff is trying to recover for him or herself

01:34 - 49.216 in the name of the Commonwealth.

01:34 - 51.085 That is correct, Your Honor.

01:34 - 52.553 But we also have to remember this.

01:34 - 55.489 The CPL is is an unusual statute.

01:34 - 56.857 It also talks about

01:34 - 01.028 and we've heard about civil penalties on behalf of the Commonwealth,

01:35 - 05.166 as if we needed sort of reinforcement about who the party is.

01:35 - 10.371 The Da say, well, you know, there's this this, amendment to the fiscal code

01:35 - 12.573 that says that the A's get to keep what they recover,

01:35 - 14.508 they can't recover civil penalties.

01:35 - 16.644 Those go only to the Commonwealth.

01:35 - 19.680 So while we can argue about the difference in, in the name of and on behalf

01:35 - 24.685 of the only damage, they're talking about a civil penalty they cannot recover.

01:35 - 27.655 So under the fiscal code, it cannot go to them.

01:35 - 30.858 Even though the fiscal code says they keep what they recover,

01:35 - 34.428 it can't go to them because they cannot recover civil penalties.

01:35 - 36.163 So. Correct.

01:35 - 40.801 Mr.. Here, if you were correct that, somehow,

01:35 - 45.239 we must construe,

01:35 - 47.041 the interplay of these statutes

01:35 - 52.413 to give the Attorney General the power to displace without without intervening,

01:35 - 55.983 as he does have the power to do.

01:35 - 57.485 Doesn't that mean that

01:35 - 01.088 in every other statute in persons, the,

01:36 - 04.091 wherever it says in the name of the Commonwealth, whether

01:36 - 08.462 it's one of these factory inspector statutes or whatever's under title 16,

01:36 - 11.565 or that any person, language and other statutes

01:36 - 15.936 universally in all those statutes,

01:36 - 19.907 the attorney general could act will swoop

01:36 - 24.478 in, displace whoever's litigating that, take over the case.

01:36 - 28.983 No, Your Honor, I'm not saying that we are talking about consumer protection

01:36 - 33.120 in the Commonwealth Court was absolutely right when it said,

01:36 - 34.655 look, there is an ambiguity.

01:36 - 37.158 We keep fighting about whether there's an ambiguity.

01:36 - 39.960 It is undisputed that the UTP does not say

01:36 - 42.930 who gets to resolve the claim that they both can file.

01:36 - 46.433 That's what this case is about, who gets to resolve it.

01:36 - 49.436 So if these other statutes that you're referring

01:36 - 52.439 to said these are brought in the public interest,

01:36 - 56.310 then that has to mean the Commonwealth or at least the public.

01:36 - 57.611 But I just follow up. Sure.

01:36 - 59.747 Resolve it.

01:36 - 01.682 I'm not sure I see the, the,

01:37 - 06.320 maybe I'm just failing to understand this.

01:37 - 08.255 This huge impasse, you see.

01:37 - 10.424 So this is a downstream thing.

01:37 - 13.427 The the DA's bring their actions,

01:37 - 17.431 the OAG brings its action,

01:37 - 20.467 and then whatever happens,

01:37 - 24.038 the in in the counties where the two DA's

01:37 - 27.041 brought their actions, there's a disagreement

01:37 - 30.644 on resolving a case, and it can't be fixed.

01:37 - 34.648 So the pharmaceutical companies can make a judgment

01:37 - 37.918 whether they want to settle with whoever is willing to settle.

01:37 - 40.921 And then on the civil penalty issue

01:37 - 44.091 that the DA's don't want to settle, they litigate that.

01:37 - 45.993 What's the problem?

01:37 - 49.630 The problem is, Your Honor, we want to settle cases

01:37 - 53.167 on behalf of the citizens of Allegheny County and Philadelphia.

01:37 - 55.202 And the DA's don't they?

01:37 - 00.541 We we have to agree that it's the same citizens at play in both the attorney

01:38 - 04.745 general's lawsuits and settlements and their releases are extremely broad.

01:38 - 07.748 We establish, though, that the county executive's

01:38 - 10.751 action is under paragraph nine,

01:38 - 13.220 whereas the,

01:38 - 16.891 the DA's are under this section for no.

01:38 - 20.928 The Delaware County cases filed by Philadelphia and Allegheny

01:38 - 24.698 County are the private actions for different actions.

01:38 - 26.367 And the district attorney's actions.

01:38 - 28.836 We're talking about two different things completely.

01:38 - 30.004 And they're settled.

01:38 - 31.705 They're settled. Yeah, that's what I'm saying.

01:38 - 32.106 Yeah.

01:38 - 34.909 So that so the county executive piece is out.

01:38 - 35.442 Right.

01:38 - 39.413 We're talking about AG OAG versus the DA's right.

01:38 - 43.918 Your honor, I apologize, but they're not out.

01:38 - 46.053 The citizens of Philadelphia

01:38 - 49.823 and Allegheny County joined the attorney general settlement.

01:38 - 53.060 The documents couldn't be more clear about that.

01:38 - 54.662 They joined the settlements.

01:38 - 58.632 And we all agree the attorney general has a right to bring that claim on behalf.

01:38 - 01.769 I'm sorry, but, counsel, you would agree

01:39 - 06.674 that the AG can settle and you could only settle with someone.

01:39 - 10.577 The claim that they own the correct.

01:39 - 11.312 Correct.

01:39 - 15.482 The citizens of Allegheny County or Philadelphia

01:39 - 19.987 do not own the claim that was brought by the D.A..

01:39 - 21.455 They do, Your Honor.

01:39 - 23.490 I see that's where that's where

01:39 - 26.160 I differ with you.

01:39 - 30.364 I mean, the the Unfair Trade Practices Act makes clear

01:39 - 35.002 the legislative recognition that local interests

01:39 - 40.174 may differ in some circumstances from the Commonwealth's interests.

01:39 - 44.678 That's why the district attorney or the Commonwealth can bring a claim.

01:39 - 48.315 I don't see anything in that statute

01:39 - 51.318 that suggests that the Commonwealth

01:39 - 54.989 can decide that they have the ability

01:39 - 59.193 to settle those claims that are brought by the district attorney,

01:39 - 04.631 advancing the local interest that they are recognized to be able to pursue

01:40 - 08.402 and do the unfair trade practices that they're authorized to bring them.

01:40 - 12.306 Your on page two of the plaintiffs of the district Attorney's brief says,

01:40 - 16.010 we are bringing these claims on behalf of our citizens,

01:40 - 18.445 the citizens of the counties.

01:40 - 22.649 Those are the exact citizens who joined the ag settlements

01:40 - 26.653 of their public claims, who settle their public claims,

01:40 - 30.090 their public claims, not the DA's claims

01:40 - 33.360 that the executive of the Allegheny County

01:40 - 37.798 cannot settle the district attorney's case.

01:40 - 39.400 But the citizens can.

01:40 - 42.836 Your honor, the the cities, the just the,

01:40 - 46.373 county executive is acting on behalf of those same citizens.

01:40 - 49.710 I mean, there is a divide,

01:40 - 54.581 that is recognized in the Unfair Trade Practices Act.

01:40 - 58.652 And the divide gives authority to two different entities.

01:40 - 00.054 And I'll just say it again.

01:41 - 05.059 The reason we are here is because of the bulldozer that was used here.

01:41 - 09.396 Which brings me just my question to the settling defendants.

01:41 - 10.531 In general.

01:41 - 14.668 Why would the settling defendants ever agree

01:41 - 18.839 to a settlement without the discontinuance

01:41 - 21.942 with prejudice of the pending

01:41 - 25.245 Common Pleas court actions, because they're still pending?

01:41 - 27.114 They you're correct.

01:41 - 30.050 They were stayed, Your Honor, but part of the settlement agreement,

01:41 - 31.585 this is a national settlement.

01:41 - 33.854 Obviously, you can tell by 100 of the pages in a record.

01:41 - 35.622 Very, very complicated settlement.

01:41 - 39.993 Tried working through about 50 those cases and decided it was above my pay grade.

01:41 - 43.230 So yes, yes, it was dependent, Your Honor,

01:41 - 46.967 on the buying of different subdivision, I get it,

01:41 - 50.070 but if they didn't buy in, they didn't buy in.

01:41 - 52.239 I mean, see, that's that's the problem

01:41 - 56.143 with a lot of settlement agreements when there are multiple defendants.

01:41 - 58.612 That's why you have joint charges or releases.

01:41 - 01.849 That's why, you know, the law has developed along those lines.

01:42 - 07.221 But what we have here is a situation where you leave cases pending

01:42 - 12.126 and yet pretend to have settled all of those cases.

01:42 - 16.497 I mean, it's it's just so contrary to the manner in which,

01:42 - 21.835 any kind of civil litigation proceeds that it's the bulldozer approach.

01:42 - 25.873 We're going to see what we can get, and keep our fingers crossed that

01:42 - 30.010 this actually takes care of those cases that we left pending out there.

01:42 - 32.012 Yeah. Your honor, a couple of points.

01:42 - 33.247 First of all,

01:42 - 37.384 in a joint toward fiscal situation, the resolving parties are different.

01:42 - 40.954 They're different clients, the same parties

01:42 - 44.758 who the DA's represent settled their public.

01:42 - 45.993 And, by the way, private.

01:42 - 48.962 That's why they're the private claims were dismissed in Delaware County.

01:42 - 50.764 They settled their claims.

01:42 - 53.500 See, that's where you and I will continue to disagree,

01:42 - 58.338 because the district attorneys have a distinct ability

01:42 - 01.341 to bring a distinct cause of action

01:43 - 04.311 under section four, this Allegheny

01:43 - 07.714 County, the county executive, whoever it is, I was out there,

01:43 - 11.718 they had their own lawsuits that they could bring their settled.

01:43 - 14.488 They're discontinued. Correct.

01:43 - 17.491 They are stayed in in Delaware County, their state.

01:43 - 20.494 Your honor, the best analogy may be in our appellate

01:43 - 24.131 case law, including this court's jurisprudence is a wrongful death claim.

01:43 - 27.634 We know by rule that a wrongful death claim has to be brought

01:43 - 31.338 by the personal representative on behalf of the beneficiary,

01:43 - 34.441 but it's the beneficiary who's the real party in interest.

01:43 - 39.146 So if the beneficiary settles that claim before the personal representative

01:43 - 43.850 file suit, or outside of the lawsuit that the personal representative files,

01:43 - 47.221 the personal representatives claim is released

01:43 - 50.490 because the party for whom the claim is bought released it.

01:43 - 54.194 That is exactly equivalent to what we have here,

01:43 - 58.265 because the litigants, the citizens, the electorate,

01:43 - 00.234 they use all those words to describe

01:44 - 03.837 them, settled the claims that they're bringing,

01:44 - 08.208 and they settled under the broadest possible general releases that released

01:44 - 12.646 all claims by elected officials, including district attorneys.

01:44 - 15.182 So except that your

01:44 - 19.953 I understand the general public interest argument in the citizenry, etc.,

01:44 - 26.760 but you still you still have the inconvenient fact that

01:44 - 30.030 the General Assembly said attorney general

01:44 - 33.767 or a district attorney, and that created

01:44 - 37.271 it's like a chosen action.

01:44 - 41.642 I mean, it it boosted the Da into this ownership

01:44 - 44.978 status here. And,

01:44 - 47.681 I'm not sure I see

01:44 - 50.684 how you can displace that.

01:44 - 53.787 Do away with that.

01:44 - 58.125 On the strength of an invocation of the generalized public interest,

01:44 - 02.029 it seems like a risk that your clients

01:45 - 05.365 and the attorney general were bearing,

01:45 - 08.268 as they move forward here.

01:45 - 11.338 And I think an assumption was made,

01:45 - 14.608 validated by the Commonwealth for year,

01:45 - 17.311 that, that that the AG

01:45 - 20.314 could just override the Da,

01:45 - 22.282 which,

01:45 - 26.186 which, again, faces this inconvenient statutory language.

01:45 - 27.621 Your honor, with respect,

01:45 - 31.058 I don't think it's inconvenient or fine with the statutory language

01:45 - 35.762 because it says they can bring a claim that's agreed to it's stipulated

01:45 - 39.900 the issue was what happens when they disagree in the disposition.

01:45 - 42.736 It's like two competing personal representatives

01:45 - 44.338 bring a wrongful death claim.

01:45 - 45.272 It's the same idea.

01:45 - 47.040 There's only one beneficiary.

01:45 - 49.276 It's the citizens of Allegheny and Philadelphia.

01:45 - 52.145 So a court has to decide. Somebody has got to control.

01:45 - 54.381 You can't just say, well, they can both bring the claim.

01:45 - 58.819 Somebody has got to control, who decide who controls its disposition.

01:45 - 00.420 And that's the issue.

01:46 - 01.221 If you look at

01:46 - 02.489 and I won't mention the Constitution,

01:46 - 05.125 it does say chief officer, that's not surplus it.

01:46 - 07.961 But look at the Commonwealth Attorneys Act that we've heard about.

01:46 - 11.331 It vests far more authority in an attorney general

01:46 - 13.600 with respect to consumer affairs.

01:46 - 15.535 They get to appoint the consumer advocate.

01:46 - 18.572 They get to run all the consumer programs in the Commonwealth.

01:46 - 20.073 So look at this, CPL.

01:46 - 23.243 It's the same way they can do a lot of things a Da can't do.

01:46 - 26.012 They accept assurances of voluntary compliance.

01:46 - 28.648 They write the regulations for the CPL.

01:46 - 31.151 So clearly what the Commonwealth had to do

01:46 - 33.553 is not decide who gets to bring the action.

01:46 - 34.888 We agree with that.

01:46 - 37.791 It's who gets to decide how it's resolved.

01:46 - 41.261 That's that's a I don't know how you split the baby.

01:46 - 44.231 That way you bring in action in order to recover.

01:46 - 47.968 I mean, you're saying you bring in action for the heck of it.

01:46 - 53.006 I mean, the reason the actions are broad is to result in a recovery of funds.

01:46 - 56.042 I mean, if someone other than the person who brings

01:46 - 59.045 the claim has the ability to decide,

01:46 - 02.649 what to take at the end of the game, that's a hollow

01:47 - 05.719 right to bring the action in the first place.

01:47 - 09.189 I mean, as I look at this, I mean, the question keeps being, yes.

01:47 - 10.590 Who gets to decide?

01:47 - 14.561 I would say these suits that were brought by the district attorneys,

01:47 - 19.499 they have the right to weigh in on

01:47 - 23.503 what the public interest being served is

01:47 - 28.775 and what is necessary in terms of compensation to accommodate

01:47 - 33.713 those claims, because that's what the General Assembly allowed them to do.

01:47 - 35.549 Mr.. That's I just I'm sorry.

01:47 - 36.950 Can I interrupt apology?

01:47 - 38.985 I think we're getting I think we're getting lost. Yeah.

01:47 - 42.322 I want to go back to essentially what at the outset of this

01:47 - 46.092 whole conversation, Justice Mundy asked a question who controls the settlement?

01:47 - 48.128 In other words, who settles the case?

01:47 - 51.398 Because if you have two different law firms, two plaintiffs firms, for instance,

01:47 - 53.200 who represent the same victim,

01:47 - 58.004 who controls it, you have one big firm saying,

01:47 - 01.575 we can get you a lot more money, and one firm saying, this is a great settlement.

01:48 - 04.144 Who decides to settle the case?

01:48 - 05.111 That's this. Kate.

01:48 - 05.912 You're right, Your Honor.

01:48 - 07.781 It's a big deal because we keep going back

01:48 - 11.751 and forth with regard to who can bring it, which I understand the statute says D.A.

01:48 - 13.286 or attorney General.

01:48 - 16.356 But if the representative capacity we've already established

01:48 - 19.993 this is a public interest, the CPS is a public interest statute.

01:48 - 24.698 You file on behalf of the public, it becomes who settles the claim.

01:48 - 28.401 So if you're representing the same public, whether it's the citizens

01:48 - 32.405 of Philadelphia, which is a subset of the Commonwealth of Pennsylvania,

01:48 - 36.443 that's where I keep getting lost in this particular issue.

01:48 - 36.743 Yeah.

01:48 - 38.378 Claim is settled by somebody.

01:48 - 39.813 Somebody's got to control it.

01:48 - 42.082 If two law firms represent the same party,

01:48 - 44.184 who says

01:48 - 47.187 either settling or not selling, is it the law firm or is it the client

01:48 - 50.423 it in the personal injury scenario, Your Honor, it's the victim.

01:48 - 53.693 The victim gets to decide whether to settle it here.

01:48 - 56.496 The victim is the citizens of Philadelphia and Allegheny County.

01:48 - 00.166 They joined the settled the case on behalf of the victims of the Commonwealth

01:49 - 00.834 of Pennsylvania.

01:49 - 02.736 The citizens of the Commonwealth of Pennsylvania,

01:49 - 05.906 which include the citizens of Allegheny and Philadelphia and

01:49 - 09.175 and those citizens decided to join the attorney general settlement.

01:49 - 10.410 This is the point.

01:49 - 14.414 This you could have two you could have ten law firms representing the same person.

01:49 - 18.285 But if that person, like a beneficiary in a wrongful death claim, releases

01:49 - 20.287 their claims, that claim is gone.

01:49 - 22.122 For all ten law firms.

01:49 - 24.724 So he was asking that question at the outset.

01:49 - 27.661 I don't think I got an answer, which is Mr. Harris.

01:49 - 28.662 Mr.. Here though, who,

01:49 - 33.199 who who agreed

01:49 - 36.202 to the settlement for the citizens

01:49 - 39.706 of Philadelphia and Allegheny county,

01:49 - 42.709 their elected representatives as the release to say, your honor,

01:49 - 46.713 isn't the district attorney the elected representative of the people?

01:49 - 48.582 He is an elected representative.

01:49 - 51.751 And had he joined the settlements on behalf of them in the settlement,

01:49 - 55.121 said anybody by or through the district attorney joins the settlement,

01:49 - 56.690 then it would be the same result.

01:49 - 01.394 I my point is there are many elected officials in Allegheny County.

01:50 - 04.864 I mean, I does that the sheriff agreed to settle.

01:50 - 06.833 They give you the authority to settle?

01:50 - 08.768 I wouldn't think so, Your Honor.

01:50 - 14.207 I mean, we have to remember only DA's in ages can bring a public interest.

01:50 - 15.141 I'm asking, I'm trying.

01:50 - 16.376 I'm getting to a finer point of this

01:50 - 18.511 because I believe this case is about settlement authority.

01:50 - 20.580 I don't think that's a case about who it's really.

01:50 - 22.215 To me, it's a case about some of the thought.

01:50 - 25.919 You say that the citizens of Allegheny County and Philadelphia County

01:50 - 27.420 agreed to the settlement.

01:50 - 29.723 They're the they're the victim in the plaintiff's injury.

01:50 - 33.126 A person I'm trying to I'm asking you, did you do a poll?

01:50 - 35.028 I mean, was there a referendum?

01:50 - 37.263 I mean, how do we know this?

01:50 - 40.567 The mayor, their top executive official

01:50 - 43.737 in the Allegheny County Executive, joined this settlement.

01:50 - 44.237 And what?

01:50 - 47.240 And you're saying that that elected official

01:50 - 51.177 has the express grant of authority to settle civil actions

01:50 - 54.748 brought by the district attorney, a separate elected official,

01:50 - 57.117 on behalf of the people, that that when the D.A.

01:50 - 02.956 brings a claim, the the the way they determine the client's wishes

01:51 - 07.360 is to talk to the mayor and the county executive or the county executive.

01:51 - 10.397 Yeah, that is an executive level decision.

01:51 - 12.032 I know you're saying you're arguing that.

01:51 - 14.334 I'm asking you for the basis of your argument for that.

01:51 - 18.004 Is there a statute that gives the authority to the mayor

01:51 - 21.174 to, direct

01:51 - 25.512 the elected officials, lawyer, the district attorney

01:51 - 30.483 on how to proceed with litigation and to settle or not?

01:51 - 33.887 Yeah, I don't know. The there is clearly no.

01:51 - 34.621 Is that the answer?

01:51 - 37.157 Clearly no. In other words,

01:51 - 39.993 you're saying that even though the statute

01:51 - 43.930 says the district attorney, you're saying we can ignore that

01:51 - 48.501 and just sub in the Allegheny County Executive and the mayor of Philadelphia?

01:51 - 50.637 No, you're on the settlement authority front.

01:51 - 54.340 No, no, your honor, the statute again, we have to just be careful about what

01:51 - 57.177 it says. It said they can bring the action.

01:51 - 58.278 That's that's what it says.

01:51 - 00.146 The attorney general brought the action.

01:52 - 03.416 The question is who it's on behalf of, and it's on behalf

01:52 - 07.821 of the very citizens who then separately through their executive.

01:52 - 11.157 So the attorney general didn't have to involve what the judicial office.

01:52 - 13.193 Did you involve the governor

01:52 - 16.930 and the attorney general sign off on the on the settlement?

01:52 - 19.999 No, the governor well, that's the executive for all the people

01:52 - 21.401 of the Commonwealth of Pennsylvania.

01:52 - 24.204 So the executive would represent the public interest,

01:52 - 26.840 and they would have the settlement authority for the AG's action.

01:52 - 27.841 Right? That.

01:52 - 30.076 No, Your Honor, the governor can't bring it up.

01:52 - 30.810 Claim it as well.

01:52 - 33.680 Neither can the mayor. Correct. And he did.

01:52 - 36.049 But but I'm a question of who's citizens. I'm sorry.

01:52 - 36.282 Yeah.

01:52 - 38.651 No, I I'm, I'm I'm not sure.

01:52 - 39.986 I think we're speaking past each other.

01:52 - 43.089 You've created the paradigm

01:52 - 48.261 that the D.A., although the statute authorizes the D.A.

01:52 - 52.065 to bring the action in the name of the Commonwealth in the public interest

01:52 - 55.335 can do that.

01:52 - 58.004 But they don't speak for the client.

01:52 - 01.107 They represent some other elected official

01:53 - 05.411 speaks for the client, the victim, the beneficiary.

01:53 - 07.013 And that's the person

01:53 - 10.016 that's vested with the authority to enter into the settlement.

01:53 - 12.418 That's I understand I understand that's your argument.

01:53 - 14.254 Correct.

01:53 - 18.091 The argument, Your Honor, is the claims were brought by the correct people.

01:53 - 18.458 Right?

01:53 - 22.028 The question is, who joined the settlement and how,

01:53 - 25.265 and the question is who has the authority to settle.

01:53 - 29.035 And I think in responding to the questions, you're saying the mayor

01:53 - 31.571 had the authority to settle for the citizens of Pennsylvania

01:53 - 33.740 that the district attorney was representing?

01:53 - 35.308 Now, Your Honor, I apologize.

01:53 - 39.345 I want to distinguish between the authority question, the

01:53 - 42.515 the attorney general has the authority to settle for the whole Commonwealth,

01:53 - 43.616 and it did that.

01:53 - 46.619 It doesn't need the buying of anyone to do that.

01:53 - 49.455 Does the district attorney have the authority to settle a CPO?

01:53 - 51.191 Say the attorney general didn't bring this action.

01:53 - 53.193 Let's say that.

01:53 - 57.030 Did the district attorney possess the authority to settle their individual

01:53 - 58.097 common pleas Court actions

01:53 - 01.100 without involving the mayor or the county executive? Yes.

01:54 - 04.370 Assuming that their public interests are not individual actions? Yes.

01:54 - 05.071 You're correct.

01:54 - 06.406 If the DA's just broad claims

01:54 - 08.408 for Philadelphia and Allegheny, they could settle those.

01:54 - 12.745 Yes, they could, because it's their it's their claim on behalf of their citizens.

01:54 - 14.347 They're not aspiring.

01:54 - 18.017 The DA's here are not aspiring to bring claims outside

01:54 - 22.155 on behalf of citizens outside of their two counties.

01:54 - 25.692 The bridge that you're trying to construct that I submit doesn't

01:54 - 29.128 exist is the

01:54 - 34.067 the bridge that allows you to remove the district attorney from the statute

01:54 - 37.704 so that the the the you have the inconvenient mess

01:54 - 42.709 created by the fact that your client's settled with the OAG

01:54 - 48.181 in a situation where the OAG lacked the authority to get rid of the Da.

01:54 - 52.352 So at your peril, you settle that and the DA's have their actions, and

01:54 - 56.489 whatever happens in those actions happens so the world doesn't end.

01:54 - 01.261 You know, you you might have the view that you pay twice, if you pay again.

01:55 - 05.064 But, you know, that's a risk of settling

01:55 - 09.535 when the, the defense, you know, the, the,

01:55 - 12.572 the OAG,

01:55 - 15.541 thinks he has authority that he, that he doesn't have.

01:55 - 18.411 I mean, that's just that's not an end of the world risk, but

01:55 - 22.181 it it's a it's a bit of a mess, but there's the mess and I don't,

01:55 - 28.955 I don't see the legal construct whereby we can do

01:55 - 33.726 what the Commonwealth Court, did here and sort of clean up that mess for you.

01:55 - 38.131 Your honor, the suggestion that you cannot reach a Commonwealth wide

01:55 - 41.501 settlement until everyone signs on, as you've said, that

01:55 - 45.271 where there are claims outstanding would mean you would never reach

01:55 - 46.806 a settlement like this.

01:55 - 49.842 To this day, there are 20 other municipalities

01:55 - 52.979 in Pennsylvania that didn't join this settlement.

01:55 - 57.250 This was a Commonwealth wide settlement that had certain thresholds

01:55 - 00.386 because you're never going to get everyone join a settlement like this.

01:56 - 05.224 So it can't be the answer to say, well, you have to wait till everyone signs on

01:56 - 08.895 before you join or the hundreds of Commonwealth wide settlements.

01:56 - 12.665 And this one, Pennsylvania gets $1 billion, and that's jeopardized

01:56 - 15.802 by being jeopardized by the continuation of these claims.

01:56 - 16.502 No, it's not.

01:56 - 19.605 I totally just to finish up on that, I totally understand

01:56 - 23.476 the jeopardizing argument, and I see what the Commonwealth Court was doing here.

01:56 - 26.579 But sometimes the law jeopardizes things.

01:56 - 28.982 Sometimes the law creates a mess.

01:56 - 31.150 And the legislature gave the D.A.

01:56 - 32.018 this power.

01:56 - 35.822 And they can, you know, they can upset this thing, this applecart for you.

01:56 - 38.091 That's just too bad.

01:56 - 41.427 But, but, you know, this jeopardizing argument

01:56 - 45.465 is, is akin to sort of a public policy argument.

01:56 - 49.769 And the General Assembly makes the policy, they road district attorney.

01:56 - 53.806 And that's the basis upon which these folks get to sue

01:56 - 56.943 and get to have a seat at the table in your honor.

01:56 - 59.479 That's a good way to sort of get back to where we started.

01:56 - 02.215 There is a mess. I agree with you, but it's an ambiguity.

01:57 - 05.218 It's something courts and especially this court deal with all the time.

01:57 - 08.221 The statute saying we do take them together.

01:57 - 10.189 The statutes say the AG or D.A.

01:57 - 13.526 can bring the claim, but the simple ambiguity is and it's not,

01:57 - 16.763 I submit, Your Honor, that it can be easily reconciled.

01:57 - 21.334 When we look at the the authority of the attorney general versus the D.A.

01:57 - 23.169 across all of these provisions.

01:57 - 26.839 Yes, the Constitution, but the CAA and the CBL, too.

01:57 - 30.643 So this is a simple matter of statutory interpretation.

01:57 - 34.881 The statute doesn't address who gets to settle claims for the same people.

01:57 - 37.950 That's what I hope that I understand your argument.

01:57 - 40.153 And, you know, it's you've repeated it.

01:57 - 41.654 It's been repeated.

01:57 - 46.025 But it it doesn't make any sense

01:57 - 49.762 in the context of how litigation works.

01:57 - 53.833 This notion that

01:57 - 56.269 you could take your chances and ignore

01:57 - 59.338 pending lawsuits on the theory

01:57 - 03.509 that the ability to settle is somehow different

01:58 - 08.581 than the ability to take over that lawsuit, is one that just doesn't it?

01:58 - 10.550 Just as in fly. I mean,

01:58 - 14.220 if there were a super session authority, which is why that's been argued.

01:58 - 18.925 I mean, this case has been argued as the AG has the right to supersede.

01:58 - 22.528 Without that right, you can't take over a lawsuit.

01:58 - 25.832 I mean, you know, if this if the

01:58 - 28.835 if this goes back to Delaware County and I'm assuming that's

01:58 - 32.705 where everything is still pending, I have a unclear

01:58 - 37.009 understanding of what's still out there, but I'm assuming it's in Delaware County.

01:58 - 38.911 It's goes back to Delaware County.

01:58 - 41.581 Somebody can make the argument you're making here,

01:58 - 44.584 and the district attorney is going to take the position.

01:58 - 46.619 It didn't settle our claims.

01:58 - 48.554 That was not, in the,

01:58 - 50.857 best interest, the

01:58 - 54.794 public interest of the electorate that we represent here,

01:58 - 57.830 that that arguments can be made, but they still have lawsuit.

01:58 - 01.701 But it then it sounds like, Your Honor there somebody's going

01:59 - 05.304 to have to decide this issue, which is a mess, as Justice Wax says.

01:59 - 08.241 But somebody is going to have to decide who controls.

01:59 - 11.811 The ultimate disposition of that is that they could decide

01:59 - 14.814 to to try their cases.

01:59 - 19.185 I mean, each of their individual cases is based upon facts

01:59 - 22.822 and circumstances existing within their jurisdictions.

01:59 - 26.993 I mean, I'm assuming I don't know how this settlement came to pass,

01:59 - 32.131 but I can look at the, distribution through the fund, and it's obviously done

01:59 - 35.735 on some assessment of the county by county impact,

01:59 - 39.872 of the, opioid, scourge.

01:59 - 43.442 I mean, so every day the district attorneys

01:59 - 47.346 who still have cases pending may say, here's our case, here's

01:59 - 51.651 what here's what the impact is in our jurisdiction.

01:59 - 54.020 By, you know, and this

01:59 - 57.690 is, this is, you know, where our lawsuit generated.

01:59 - 59.725 I don't know what would be wrong like that.

01:59 - 02.428 It would be inconvenient. There's no question about that.

02:00 - 08.301 But but yet, without the ability to supersede those lawsuits,

02:00 - 09.268 I don't know how.

02:00 - 12.104 I don't know how the, AG can settle them.

02:00 - 14.874 You can't try a case, Your Honor.

02:00 - 18.578 If, as a matter of law, there is no relief that you can recover

02:00 - 21.747 under the CPO, there are only three forms of relief.

02:00 - 24.517 There's an injunction which the ag god,

02:00 - 27.520 there's a restitution, which you need a permanent injunction.

02:00 - 29.655 Sorry. If they get a permanent injunction.

02:00 - 32.358 It is an injunction for ten years, Your Honor.

02:00 - 32.858 It's not.

02:00 - 36.162 But it's not a permanent injunction with the permanent injunction.

02:00 - 38.464 Disgorgement case of flexibility. Correct.

02:00 - 41.400 And that is not that was not part of the settlement.

02:00 - 42.902 Correct? It was, Your Honor.

02:00 - 47.406 See, this is I thought it was expressly, exempted.

02:00 - 49.408 Yeah. Disgorgement and civil penalties.

02:00 - 51.978 First of all, disgorgement is not in the CBL at all,

02:00 - 57.116 but it was excluded only as compensatory compensation restitution.

02:00 - 59.118 And that's because of tax reasons.

02:00 - 02.255 These settlements foreclose any and all relief

02:01 - 05.992 for any opioid related harm of any kind.

02:01 - 09.428 So the district attorneys, when they go back,

02:01 - 11.864 they can't get an injunction because the AG got that,

02:01 - 14.867 they can't get restitution because you need an injunction first

02:01 - 18.838 and they can't get civil penalties, because however, we define a difference

02:01 - 21.841 in, in the name of and on behalf of, they have to go to the Commonwealth.

02:01 - 26.012 So there's nothing for them to recover because it's all been released.

02:01 - 26.946 So if I pivot away

02:01 - 31.017 from the respective authorities, the fact is under race to to coda

02:01 - 35.321 for instance, these consent judgments acquired race to you to court effect.

02:01 - 38.758 And that's obviously for a court ultimately to determine whether they do.

02:01 - 42.228 But the parties to this, which again included the citizens said

02:01 - 46.232 these are preclude civ of all other opioid related claims.

02:01 - 49.769 So if you go back to Delaware County,

02:01 - 52.938 first of all, those are those are claims by counties.

02:01 - 56.008 The attorney general doesn't have to intervene at all.

02:01 - 58.811 But why would it intervene in a claim for a county

02:01 - 01.814 when it's settling on behalf of the Commonwealth as a whole?

02:02 - 03.783 You keep confusing me.

02:02 - 06.686 The district attorneys have actions pending

02:02 - 10.089 district attorney's claims against the settling

02:02 - 13.526 defendants, or people who have settled for whom they can recover.

02:02 - 16.128 No relief what they have claims pending.

02:02 - 19.398 And you say that some court may have to decide that.

02:02 - 24.303 Are there other claims brought by the County of Allegheny?

02:02 - 26.439 Forget about the district attorney's claims.

02:02 - 29.408 Those have been dismissed as okay, okay.

02:02 - 30.109 So you that's

02:02 - 33.646 what happens when you settle claims on behalf of the County of Allegheny.

02:02 - 36.482 They get dismissed, the lawsuits get dismissed.

02:02 - 40.986 Those were private claims I get it, I get it.

02:02 - 44.056 They were claims for different damages.

02:02 - 47.593 Unlike the DA's claims, which ruled against the same people

02:02 - 49.528 for the same relief.

02:02 - 54.533 If appreciating your honors, that you might not be buying what I'm selling.

02:02 - 58.771 If I could just quickly, pivot to, the consequence

02:02 - 03.809 because in statutory interpretation, of course, the consequences, matter.

02:03 - 08.547 If not only is the continuation of these claims

02:03 - 12.885 going to cost the remainder of the Commonwealth millions

02:03 - 16.088 and millions of dollars and appreciating, your Honor, that

02:03 - 19.492 that's a consequence of allowing claims to remain open.

02:03 - 23.896 I also think you're going to invite chaos.

02:03 - 27.500 I don't think is too strong into the settlement.

02:03 - 31.470 A couple claims, because the statements

02:03 - 34.440 we've heard today are the DA's were first here.

02:03 - 35.408 That's just not true.

02:03 - 37.543 Attorney General

02:03 - 41.213 Shapiro first spent years investigating.

02:03 - 45.151 Well, they the people investigate things all over the place for years.

02:03 - 48.320 We're not talking about the maybe the DA's would say

02:03 - 50.823 we were investigating this from the day we were born.

02:03 - 52.391 I mean, it's meaningless.

02:03 - 57.296 We look at the the filing of a lawsuit to the extent primacy matters.

02:03 - 59.999 And I'm not I'm not saying it does. Right.

02:03 - 03.269 You know, that sort of competition is is meaningless.

02:04 - 06.505 But they did bring their actions first.

02:04 - 09.809 And in this consequentialism

02:04 - 13.412 to me, is is an argument to make to the General Assembly

02:04 - 17.850 if you want them to take the DA's out of the statute because,

02:04 - 22.621 you know, hey, senators and representatives, here's exhibit A,

02:04 - 26.659 look how much money you you blew for the Commonwealth,

02:04 - 30.162 because you've got this da language in section four.

02:04 - 35.100 But coming to us and arguing, gosh, you have to affirm the Commonwealth Court,

02:04 - 39.104 because otherwise the heavens will fall, you know, let justice be done.

02:04 - 40.606 No, the heavens fall.

02:04 - 43.609 And, justice here is whatever the statute says.

02:04 - 45.978 And, Your Honor, I agree.

02:04 - 48.647 I won't return to the interpretation part because there's no

02:04 - 51.650 I don't think now there's any doubt that there is an ambiguity,

02:04 - 55.221 but what I'm pointing out is the suggestion earlier seemed to be

02:04 - 58.924 that this AG was sort of late to the party and sort of glommed

02:04 - 01.994 on, and we're going to allow 1 or 2 days.

02:05 - 05.998 And yes, these are big county DA's, but they could be small county DA's

02:05 - 09.401 to wait until the attorney general spends years, and only

02:05 - 12.905 the attorney general can negotiate with the hundreds of subdivisions

02:05 - 16.342 in a state to reach a Commonwealth wide settlement.

02:05 - 17.676 And this was done

02:05 - 21.480 five years ago was a hallmark, obviously, of now Governor Shapiro's tenure.

02:05 - 25.584 But since then, it's been attorney Generals Henry and Sunday

02:05 - 28.988 who have defended this for five years after this settlement

02:05 - 31.223 was supposed to be completed.

02:05 - 34.927 So in terms of policy and look into the next case,

02:05 - 38.864 it is a strong disincentive, I'd submit, to say

02:05 - 43.168 that you work at your peril if you try to settle

02:05 - 46.805 on a Commonwealth wide claim, if there's any claim still out there,

02:05 - 51.210 because the legislature hasn't said the AG supersedes

02:05 - 56.181 when all of the relevant Ampere materials say the AG is superior

02:05 - 01.921 with respect to consumer claims, would it be so easy for the Commonwealth,

02:06 - 05.190 for the General Assembly to say,

02:06 - 09.261 and the Commonwealth supersedes any cases brought by the D.A.,

02:06 - 12.932 or there could be something in the Commonwealth Attorneys Act.

02:06 - 16.402 That effort gives the,

02:06 - 21.307 the Commonwealth to supersede under any circumstances.

02:06 - 23.275 It would have been easy for them to do that.

02:06 - 26.178 They didn't. And maybe you're right. Maybe they should have.

02:06 - 28.981 And question becomes, why did the General Assembly

02:06 - 31.984 use the word intervene as opposed to supersede?

02:06 - 36.522 Because it's another indication of the power of the attorney general versus

02:06 - 37.022 the Da.

02:06 - 41.894 The Da can intervene in ag suit, but the AG can intervene in a Da suit.

02:06 - 47.099 Didn't know why it you did not intervene that that's the that's the ironic thing

02:06 - 52.137 you you you you specifically you number one you did not intervene.

02:06 - 56.675 And number two, under your interpretation, the language giving you

02:06 - 01.246 the power to intervene is meaningless because you can supersede way anytime.

02:07 - 04.183 No, Your Honor, we, it says, may intervene. But why would.

02:07 - 06.118 And I'm not asking the court a question, obviously.

02:07 - 07.820 But why would we intervene in a county action?

02:07 - 09.355 It's a Commonwealth wide settlement.

02:07 - 10.589 We don't need to intervene.

02:07 - 13.892 When you look at the respective authority through all of those documents,

02:07 - 18.998 the power, especially in a consumer realm of the of the AG outstrips at the Ace.

02:07 - 22.501 So why would we intervene in Philadelphia, in Allegheny County this like this?

02:07 - 25.337 Well, it wouldn't it because then a court would still decide.

02:07 - 28.340 Your Honor, what if the court said, well, the DA's get to control this case

02:07 - 32.711 against all the authority saying the AG can make a Commonwealth wide settlement?

02:07 - 35.881 It does seem to me, though, that you have there's

02:07 - 38.851 a lot of off ramps to the parade of horribles.

02:07 - 40.619 If we were to say,

02:07 - 44.056 that what

02:07 - 47.059 the Commonwealth that this suit, the superstition and stuff doesn't exist.

02:07 - 52.231 We don't have that an off ramp would be your pharmaceutical companies

02:07 - 55.768 would go in to the dock, to the to the to the, you know,

02:07 - 58.771 the two actions where there was no settlement,

02:08 - 02.775 the attorney general would intervene

02:08 - 07.112 and you'd argue in front of the Common Pleas Court all of the issues.

02:08 - 12.284 One, you have to dismiss the case because any remedy that they are seeking

02:08 - 15.320 is foreclosed by the settlement the attorney general entered into.

02:08 - 16.655 Money would go to the Commonwealth.

02:08 - 17.890 There's nothing for them to recover.

02:08 - 19.958 You've made that already?

02:08 - 21.627 You could argue restaurant card.

02:08 - 24.630 You could argue all kinds of of things.

02:08 - 29.768 And get the same result, the enforcement of a statewide settlement.

02:08 - 31.937 But the Commonwealth's a party, Your Honor.

02:08 - 34.306 So the Commonwealth Court to cite, you know,

02:08 - 36.408 all these issues were before the comma. I'm not saying that.

02:08 - 37.142 I'm not saying that you do.

02:08 - 38.077 I'm not saying the Commonwealth Court

02:08 - 39.745 didn't have jurisdiction and everything like that.

02:08 - 42.614 I'm just saying we're here struggling or I'm struggling.

02:08 - 46.885 I'm not gonna speak for my colleagues with this whole super session concept and,

02:08 - 50.823 and, and and your response, which I completely understand

02:08 - 54.326 why you're rating raising if, if we don't make this grand principle

02:08 - 58.230 that the attorney general has super session authority

02:08 - 02.101 in all consumer protection matters, notwithstanding the ability of a D.A.

02:09 - 04.970 to bring an action, the world is going to crumble.

02:09 - 07.172 Statewide settlements are never going to exist.

02:09 - 08.207 All of that stuff.

02:09 - 13.178 I'm just saying that I see off ramps that would prevent us from getting there.

02:09 - 14.346 Do you see them?

02:09 - 16.815 I do, Your Honor, and I think they're before this court.

02:09 - 19.184 But totally appreciating if Your honors don't

02:09 - 21.120 reach them in the Commonwealth Court said they're moot.

02:09 - 23.589 Can we raise them elsewhere?

02:09 - 28.560 Mr. Harper, I, I appreciate your public policy argument.

02:09 - 29.995 I think it's very strong.

02:09 - 32.131 My problem is I can't get there

02:09 - 36.401 because I don't find an ambiguity in the statutory authority.

02:09 - 39.404 And I wondered if you could just address that.

02:09 - 41.940 Sure. Your honor, there is.

02:09 - 45.277 I submit, respectfully, there is an ambiguity because it

02:09 - 48.313 the statute only talks about who can bring the claim.

02:09 - 51.483 The problem is now having those gap.

02:09 - 55.754 So isn't that I was that an ambiguity because it doesn't address

02:09 - 57.256 what happens later?

02:09 - 00.125 It says you can both bring them, but it doesn't address conflict.

02:10 - 03.128 Just like my personal representative in a wrongful death scenario.

02:10 - 04.963 No statute, of course, and your honors? No.

02:10 - 07.266 This can address every possible scenario.

02:10 - 10.202 In the 40 plus years the has been on the books.

02:10 - 11.503 This has never arisen.

02:10 - 13.205 We don't call those ambiguities.

02:10 - 16.441 I mean, they're all the reason courts are busy.

02:10 - 20.412 Is there all kinds of permutations that happen downstream?

02:10 - 22.080 They're they're all.

02:10 - 25.651 I mean, that's why you folks make a good living.

02:10 - 26.552 Better living than us.

02:10 - 30.622 I mean, you did this neither are, you know, these cases.

02:10 - 35.294 But there are all kinds of things that why we enjoy our profession right there.

02:10 - 37.062 All kinds of idiosyncrasy.

02:10 - 41.700 Idiosyncracies off ramps, things that can happen downstream.

02:10 - 45.337 But that doesn't make the language of section four

02:10 - 51.510 ambiguous just because you have messy consequences down the line.

02:10 - 55.981 As far as trying a case or settling a case that doesn't make it any

02:10 - 01.587 anything ambiguous about the language that the Da can bring the suit.

02:11 - 04.089 There's nothing ambiguous about that.

02:11 - 04.623 Counsel.

02:11 - 06.892 If I could just add one other thing to that.

02:11 - 12.331 I mean, there's no downstream mess as far as I see it,

02:11 - 18.170 because there are oftentimes there cases can settle, you know, you try cases.

02:11 - 22.241 That's why we have trial lawyers who go to court and try a case.

02:11 - 25.544 I mean, if this case, if the D.A.

02:11 - 30.682 and the AG were both involved, in the action in Delaware County

02:11 - 34.953 because there was an intervention or they otherwise filed there,

02:11 - 38.423 and then the consolidated cases, you know, what would happen?

02:11 - 42.594 They'd say, we can't settle the trial court would say, go to trial

02:11 - 43.695 and there'd be a verdict.

02:11 - 45.430 There'd be a verdict.

02:11 - 48.634 There would be, you know, sometimes cases don't settle.

02:11 - 53.005 I mean, I understand the complexities involved with companies

02:11 - 55.274 like your client who have statewide issues,

02:11 - 58.076 and they want to take care of it in one fell swoop.

02:11 - 01.713 But our law is just not geared

02:12 - 05.050 toward accommodating that desire.

02:12 - 10.088 Mr. Hare, we could just go back to my question

02:12 - 13.725 as supplemented by Justice Whacked and just astonish you,

02:12 - 19.298 the fundamental problem is reaching your public policy concerns.

02:12 - 23.769 When we don't see an ambiguity in the statute.

02:12 - 27.839 If you could just address that and then supplement it however you wish.

02:12 - 28.573 Understood, Jeremy.

02:12 - 32.978 Yes, I respectfully submit that there is an ambiguity in the statute.

02:12 - 34.279 There has to be.

02:12 - 37.416 It's like the rule that says to get back to the wrongful death example,

02:12 - 39.685 because it's the only one I can think of. It's even close.

02:12 - 42.688 The personal representative has to bring a wrongful death claim,

02:12 - 46.558 but it doesn't say what happens if there are two personal representatives.

02:12 - 47.225 No statute.

02:12 - 48.260 A rule can address everything.

02:12 - 51.263 So you wouldn't come back to this court and say you didn't add in there

02:12 - 52.864 what happens later?

02:12 - 53.999 We wouldn't come back here.

02:12 - 56.168 We would have a court decide what that means.

02:12 - 00.138 And you look at the relevant, you know, statutes regarding who the proper person.

02:13 - 00.973 That's it.

02:13 - 02.140 That's Mr.. Here. That's right.

02:13 - 04.843 But that didn't make the wrongful death statute ambiguous.

02:13 - 07.179 Why but Your Honor.

02:13 - 08.013 Right, right.

02:13 - 09.715 I mean, you have a messy case.

02:13 - 12.751 You the court's going to have to decide who the personal representative

02:13 - 14.353 is or whatever.

02:13 - 17.656 But that didn't make the statute ambiguous.

02:13 - 19.992 I mean, I don't think we've ever seen that.

02:13 - 21.126 Have we?

02:13 - 22.661 In the personal representative scenario?

02:13 - 24.730 No, just like we've never seen this scenario.

02:13 - 27.933 But if it doesn't answer the question before the court because it doesn't,

02:13 - 30.902 section four does not answer the question before this court.

02:13 - 33.271 Who controls the disposition?

02:13 - 34.673 It doesn't answer.

02:13 - 37.275 Saying who brings the claim doesn't resolve it.

02:13 - 39.111 It's about who resolves it.

02:13 - 41.246 And that's the issue here.

02:13 - 42.514 That's the issue before this court.

02:13 - 44.816 So I just submit, Your Honor, to answer your question.

02:13 - 47.252 I do believe there's an ambiguity.

02:13 - 50.756 And if we then have to look as the Commonwealth Court did, to the

02:13 - 51.656 in parametric stuff,

02:13 - 53.959 and I won't be redundant, it's got to be the attorney general

02:13 - 56.962 because it's a Commonwealth wide settlement.

02:13 - 59.431 All right. Any other questions for Mr. Hare?

02:13 - 00.399 Thank you.

02:14 - 02.501 Thank you very much, Mr. Hare. Mr.

02:14 - 04.469 McMichael, miss Dorsey, Mr.

02:14 - 07.372 currency, tremendous arguments.

02:14 - 10.175 Your clients should all be, assured

02:14 - 13.345 that the very best job was done by their counsel.

02:14 - 15.147 Thank you.

02:14 - 17.916 The next case, Commonwealth of Pennsylvania versus Keith

02:14 - 21.920 Phillips, involves a familiar subject, the Miranda warnings.

02:14 - 24.623 But a very unique set of facts.

02:14 - 27.726 On July 5th, 2019, in North Philadelphia, two men,

02:14 - 31.696 Sadat and Williams, were shot by another person who was wearing

02:14 - 35.300 a distinctive floral pattern shirt and riding a bike.

02:14 - 38.837 So that was killed and Williams seriously wounded.

02:14 - 43.075 Philadelphia police received a tip that Sadat's killing was a contract hit,

02:14 - 48.747 and that the shooter had an Instagram account with the handle broad de Kay.

02:14 - 53.718 When police detectives searched his Instagram account, they saw pictures

02:14 - 58.156 of Keith Phillips wearing a shirt similar to the shirt worn by the shooter.

02:14 - 03.995 Also, ten minutes after the shooting, the Instagram account displayed posts

02:15 - 07.833 indicating that the account owner had just been involved in a murder

02:15 - 10.569 in November of 2019.

02:15 - 11.870 Four months later,

02:15 - 16.408 police detectives interviewed Phillips, who was incarcerated on other charges.

02:15 - 18.510 At that time,

02:15 - 21.746 the police wanted to interview him about both the Sadat and Williams

02:15 - 26.118 shootings, as well as a later shooting in which he, Phillips, was the victim.

02:15 - 28.887 Phillips was right, his Miranda rights,

02:15 - 31.890 and he waived his right to counsel and his right to remain silent.

02:15 - 34.860 The police first asked Phillips

02:15 - 37.863 about the later shooting, where he was the victim.

02:15 - 41.600 While they were discussing that topic, Phillips, after the detectives

02:15 - 44.836 were going to quote, use this in court on him,

02:15 - 49.274 one detective said nobody's using anything in court,

02:15 - 53.178 and Phillips repeated his concern that if he named his shooter,

02:15 - 56.882 the neighborhood would know and Phillips would be at risk of being killed.

02:15 - 58.750 After the

02:15 - 01.987 detectives finished questioning Phillips about his own shooting,

02:16 - 04.990 they turned to the shootings of Sadat and Williams.

02:16 - 09.661 Phillips admitted that he was the owner of the broad de Cay Instagram account,

02:16 - 14.499 and made other incriminating statements about killing Sadat and shooting Williams.

02:16 - 18.737 Phillips was arrested for murder, attempted murder, and other charges.

02:16 - 23.608 He moved to suppress his statements to the detectives about Sadat

02:16 - 26.912 and Williams, arguing that the detectives statement

02:16 - 31.149 that nobody's using anything in court contradicted Miranda.

02:16 - 35.053 The trial judge denied Phillips motion to suppress

02:16 - 38.523 and admitted his statements about the Sugar and Williams shootings.

02:16 - 42.327 The trial judge, examining the context of Phillips

02:16 - 47.132 statements, concluded that the detective's assurance only related to the incident

02:16 - 50.835 where Phillips was shot and did not want to identify his shooter.

02:16 - 54.706 The assurance did not relate to his incriminating statements

02:16 - 57.709 about killing Sadat and attempting to kill Williams.

02:16 - 01.813 Following a jury trial, Phillips was convicted of first degree murder

02:17 - 04.816 for Sadat's killing and the attempted murder,

02:17 - 08.220 attempted murder for the shooting of Williams and other related offenses.

02:17 - 10.155 He was sentenced to life

02:17 - 13.758 imprisonment without parole for killing a consecutive

02:17 - 16.995 10 to 20 years in prison for the attempted murder of Williams

02:17 - 20.265 and consecutive sentences for other offenses.

02:17 - 24.436 Phillips appealed his convictions to the Superior Court, challenging

02:17 - 27.806 the admissibility of the statements about Jordan and Williams.

02:17 - 32.844 Specifically, Phillips alleged that his Miranda waiver was ineffective.

02:17 - 37.115 A three judge panel of the Superior Court unanimously agreed

02:17 - 40.752 to, including that after the detective told him

02:17 - 45.357 nobody's using anything in court, the prosecution could not

02:17 - 48.526 then use Phillips later statements against him.

02:17 - 53.131 The Superior Court found that the trial court committed prejudicial error

02:17 - 57.469 by admitting Phillips of statements about Sadat's murder and Williams

02:17 - 58.970 as attempted murder.

02:17 - 01.606 The Superior Court vacated the sentence and remanded

02:18 - 04.709 Phillips case to the trial court for a new trial.

02:18 - 06.878 The Commonwealth

02:18 - 11.116 has appealed the Superior Court's decision and has raised the following issue.

02:18 - 13.885 Before the Pennsylvania Supreme Court.

02:18 - 18.623 Can it completed Miranda waiver later be retroactively invalidated

02:18 - 23.495 in order to use the Miranda rule to suppress a voluntary statement?

02:18 - 27.866 Let's watch and listen to the arguments in Commonwealth versus Keith Phillips.

02:18 - 32.704 Correction in Your Honors, may I please the court you burns with the Commonwealth

02:18 - 36.141 saying nobody's using anything in court

02:18 - 40.111 was not a Miranda violation once Miranda warning said pull.

02:18 - 42.881 I'm sorry, sir, could you pull the microphone down a little bit?

02:18 - 44.883 There we go. Thank you. Is that better? Yes.

02:18 - 45.950 Thank you.

02:18 - 50.655 Once Miranda warnings have been given and waive, the waiver process is done.

02:18 - 54.259 In the words of the US Supreme Court, the analysis is complete

02:18 - 57.262 and the waiver is valid as a matter of law.

02:18 - 00.965 It can't be retroactively made invalid by later

02:19 - 03.968 police conduct, even if that conduct is questionable.

02:19 - 07.706 The value of Miranda is clarity, and the warning

02:19 - 11.176 and waiver process is either clearly done or it is clearly not.

02:19 - 16.081 But once the warnings have been properly given and wade, the process is complete,

02:19 - 19.951 the error of the Superior Court in this case was the rule that the warning

02:19 - 23.254 and waiver process of Miranda was retroactively made

02:19 - 26.491 invalid by what subsequently happened later in the interview.

02:19 - 28.893 And that's not what the rule allows.

02:19 - 31.529 Now, we're not talking here about a post waiver

02:19 - 35.033 reassertion of rights, which is something that the rule does provide.

02:19 - 37.135 The Superior Court did not find that

02:19 - 40.171 the defendant waived his rights and reasserted them,

02:19 - 44.175 but that the warning and waiver process was retroactively

02:19 - 47.178 invalidated by something that happened later.

02:19 - 48.747 We rely on two cases.

02:19 - 51.783 The first is Miranda burbling, and the second is this court's

02:19 - 54.919 decision in common versus Templin and Miranda.

02:19 - 00.024 Suspect was worn and waived under Miranda and his lawyer later called the station

02:20 - 01.860 and was told that he wouldn't be interrogated.

02:20 - 04.863 Well, he was interrogated, and the Court of Appeals decided that

02:20 - 07.198 that was a Miranda violation.

02:20 - 10.935 The US Supreme Court reversed the Court of Appeals, holding that what happened

02:20 - 14.739 later had no effect on the completed Miranda waiver.

02:20 - 17.942 The court said that as long as the warnings are properly

02:20 - 20.912 given and the decision to waive is on coerced,

02:20 - 24.249 the analysis under Miranda is complete and waivers valid.

02:20 - 27.385 More on point, though, is this court's decision

02:20 - 30.388 and unanimous decision in Collins versus Templin.

02:20 - 33.191 In that case, yes, the warnings are given and waived.

02:20 - 37.562 The officer gave the suspect an inducement to confess,

02:20 - 40.598 and the issue in that case was whether that situation was the

02:20 - 44.702 same as they had in common versus Gibbs and Gibbs, though,

02:20 - 46.771 the officer

02:20 - 51.543 gave the suspect a inducement to waive under Miranda,

02:20 - 55.046 and in Champlin, this court said that the two situations are different

02:20 - 00.084 where the Miranda waiver is obtained with an inducement that's governed by Miranda.

02:21 - 03.087 But whereas here, something happens later,

02:21 - 07.025 an inducement is given to confess or some other impropriety

02:21 - 09.160 after the Miranda waiver is complete.

02:21 - 10.762 That's not governed by Miranda.

02:21 - 14.332 That's governed by the question of whether or not the statement

02:21 - 17.335 that was given was given voluntarily.

02:21 - 19.771 So tap on is directly on point.

02:21 - 22.974 It controls the Superior Court's published Miranda decision,

02:21 - 26.077 and under it and superior Court erode and should be reversed.

02:21 - 31.916 Mr. Burns, is it your position that nothing that the police officer said

02:21 - 37.121 or would have said couldn't have said after the Miranda warnings,

02:21 - 42.627 can impact the, duration of the waiver at all?

02:21 - 44.963 It can impact the waiver on Miranda.

02:21 - 48.466 It can influence the question of whether or not

02:21 - 52.670 the statement was getting voluntarily now.

02:21 - 58.643 So now we consider the fact that the defendant asked the question,

02:22 - 03.114 are you going to use that against me, or

02:22 - 06.384 doesn't that indicate his lack of understanding his rights,

02:22 - 08.786 for which he allegedly waived?

02:22 - 11.122 No. While two pages before this happened,

02:22 - 13.057 they went through the whole Miranda process,

02:22 - 16.761 and they repeatedly assured the defendant that if he wanted to stop talking,

02:22 - 19.030 for example, that would be fine.

02:22 - 20.365 He acknowledged the warnings.

02:22 - 24.702 He signed a waiver, so there's no question that he was given the Miranda warnings.

02:22 - 26.971 He understood he didn't understand them right.

02:22 - 28.706 Well, that's the question I'm having.

02:22 - 31.709 Well, there was no claim that he didn't understand the warnings.

02:22 - 34.479 That was not what the Superior Court decided.

02:22 - 36.781 And that's not something that he claimed.

02:22 - 39.117 As a matter of fact.

02:22 - 44.022 It two pages after the disputed exchange here, he said,

02:22 - 48.560 nobody's forcing me to say anything or nobody's forcing me to say nothing.

02:22 - 51.796 If I didn't want to talk, I wouldn't talk.

02:22 - 53.865 As the trial court additionally found.

02:22 - 56.868 And this this goes to the voluntariness question.

02:22 - 00.305 The trial court did find, as the chief justice mentioned, that,

02:23 - 03.675 the defendant understood, that this statement had to do

02:23 - 07.645 with the question of what's the identity of the person who shot him.

02:23 - 11.416 And and that was in a separate incident, not this murder case.

02:23 - 14.953 Before the conversation turned out,

02:23 - 18.122 it was about a half hour later to the instant murder case.

02:23 - 23.061 In fact, the officer told the defendant, I'm accusing you of murder,

02:23 - 25.630 which is something that, yeah,

02:23 - 28.967 a reasonable person the defense position would understand to mean

02:23 - 33.237 that we're not talking anymore about me being a crime victim.

02:23 - 36.040 Now we're talking about me committing a murder.

02:23 - 39.077 And, that that is significantly different situation.

02:23 - 42.747 And shortly after that, the interrogation ended, right?

02:23 - 46.784 Yes, it did.

02:23 - 48.920 Was because,

02:23 - 54.192 what what's the point of Miranda's prophylactic rule?

02:23 - 57.195 If the police can just

02:23 - 01.532 the warnings and will, is there any point to the prophylactic rule

02:24 - 06.804 because I think you what you're saying is there what's the

02:24 - 10.842 what's once he's mirandized,

02:24 - 13.578 there can be no Sixth Amendment violation.

02:24 - 19.017 There can only be a Fifth Amendment violation or in voluntariness analysis.

02:24 - 19.751 Is that right?

02:24 - 20.685 That's right.

02:24 - 23.488 And given that Scotus has said,

02:24 - 27.225 deception alone is not enough

02:24 - 30.228 to render a confession involuntary, doesn't,

02:24 - 34.432 does that mean Miranda is,

02:24 - 39.370 Miranda is essentially reduced to something meaningless?

02:24 - 40.438 Is that the.

02:24 - 41.372 Well, not at all.

02:24 - 45.109 And in passing, I want to note that again,

02:24 - 49.180 I don't think it's quite accurate to say that they were contradicting the warnings.

02:24 - 52.383 The trial court explains in its opinion that when you're talking about

02:24 - 55.153 a crime in which the defendant is the victim,

02:24 - 57.422 that's not even something that Miranda contemplates.

02:24 - 02.593 But the purpose of Miranda is a kind of a no false, again bargain

02:25 - 07.632 where we get assurance once the process of warning

02:25 - 10.635 and waiver is done, that Miranda has been complied with.

02:25 - 14.105 And we have that assurance going into the questioning.

02:25 - 17.341 On the other hand, if Miranda violated

02:25 - 21.412 even a completely voluntary confession will be excluded.

02:25 - 24.782 So, you know, that's that's the balance.

02:25 - 27.919 The confession can still be excluded if,

02:25 - 32.957 the court finds that, the interrogation was so manipulative,

02:25 - 34.826 so coercive that it

02:25 - 38.663 deprived the defendant of his ability to make a free and unconstrained decision.

02:25 - 41.799 But that's not what happened here, Mr.

02:25 - 42.633 Burns.

02:25 - 45.603 Here. The police officer said.

02:25 - 47.371 No, but let me quote it.

02:25 - 49.907 Nobody's using anything in court.

02:25 - 51.576 That was his reassurance.

02:25 - 52.777 Those are the words he said.

02:25 - 56.147 And if if that were taken completely out of context,

02:25 - 00.952 that there might be a better case for the idea that he was

02:26 - 04.722 his faculties were overwhelmed and he could make an informed decision.

02:26 - 09.060 But as the trial court found, the record supports the idea

02:26 - 12.930 that he understood that that was restricted to who shot you.

02:26 - 16.701 He had had the Miranda warnings and understood them.

02:26 - 20.538 He was told before we started talking about this case.

02:26 - 22.440 I'm accusing you of murder.

02:26 - 25.176 And again, as he himself said,

02:26 - 29.046 he stated, if I didn't want to talk, I wouldn't talk.

02:26 - 31.349 So the record had substantial support

02:26 - 34.652 with the trial court's finding that the confession was voluntary.

02:26 - 35.720 But Mr.

02:26 - 38.523 Burns, if I can counteract that, goes to coercion.

02:26 - 39.357 Yes. Okay.

02:26 - 45.062 Not not to whether or not he understood the rights that he was giving up to.

02:26 - 45.930 Correct.

02:26 - 46.831 Correct, correct.

02:26 - 50.835 But the record also supports the conclusion that he understood his rights,

02:26 - 54.872 because of the well, just the manner in which the warnings were given.

02:26 - 57.909 If it was transcribed, it was filmed.

02:26 - 02.313 He, you know, read them as well as having them explained to him he signed a waiver.

02:27 - 06.150 So and and again later in the conversation, he said,

02:27 - 08.653 I didn't want to talk, I wouldn't talk. That understood.

02:27 - 09.954 That goes to coercion.

02:27 - 15.560 What the police officer stated goes to knowing the rights that he was giving up.

02:27 - 18.963 I mean, the police officer said nobody's going to use it in court,

02:27 - 23.234 which is a direct contradiction of the Miranda warning that he got.

02:27 - 25.670 Well, it's not a coercion. That's just

02:27 - 30.107 not understanding the or confusing the right that's being given up.

02:27 - 33.845 Well, the Superior Court didn't decide on the basis of him not understanding,

02:27 - 38.082 but I think it's true to say I think it's true to say that when he said,

02:27 - 40.685 if I didn't want to talk, I wouldn't talk.

02:27 - 43.120 I think that's reflecting back the Miranda warnings.

02:27 - 44.222 I think it's under indication

02:27 - 46.858 that he did understand a warning, but that was before he.

02:27 - 52.463 That was before the police officer took back the Miranda warning aspect

02:27 - 56.534 that says that anything that anything that you say can be used in court.

02:27 - 59.470 No, that was actually later. It was actually two pages later.

02:27 - 59.937 Well, fine.

02:27 - 02.340 And said if I didn't want to talk, I wouldn't talk.

02:28 - 03.908 Mr. Burns, let's just make that for him.

02:28 - 06.811 I can just ask a quick question, Mr. Burns. Yeah, sure.

02:28 - 07.745 I'm sorry.

02:28 - 10.715 My understanding of the whole Miranda rule is that

02:28 - 13.484 you're advising somebody of their rights and, more importantly, revising them

02:28 - 16.320 to the consequence of waiting. The rights.

02:28 - 17.521 We have a whole line of cases.

02:28 - 19.290 It talks about police

02:28 - 22.193 kind of self confusion, what's allowable, what's not allowable.

02:28 - 25.563 But in this particular case, I think the Superior Court judge back

02:28 - 27.665 when she wrote the opinion, she was basically saying

02:28 - 30.801 that the police officer statement really abrogated the second

02:28 - 34.572 prong of that analysis, which was in fact the consequence

02:28 - 39.076 of waiving your right to Miranda, which is nobody's using anything in court.

02:28 - 41.045 How do you respond to that?

02:28 - 43.114 Well, under Miranda and under Templin,

02:28 - 46.984 once the warning and waiver process is done, later events.

02:28 - 47.952 But again, we do it.

02:28 - 49.320 We're talking about the initial waiver.

02:28 - 51.355 You have the right to remain silent

02:28 - 54.992 and anything you say can and will be used against you in court.

02:28 - 59.397 So they're advising of your rights and the consequences if, in response

02:28 - 01.032 to the police officer's questioning,

02:29 - 04.268 he says something along the lines, what are you going to use me in court?

02:29 - 07.171 He's talking about the consequences of this statement.

02:29 - 11.375 And the police officer's response is in direct contradiction

02:29 - 15.279 to the Miranda warnings, which is we're not using anything in court.

02:29 - 16.447 That's it.

02:29 - 18.783 So doesn't that go to the voluntariness and more importantly, doesn't it

02:29 - 22.153 go to the consequences of waiving the action, the Miranda rights?

02:29 - 28.059 It goes to the question of whether or not the state was given voluntarily,

02:29 - 31.395 does not go to the validity of the learning and waiver process,

02:29 - 33.731 which I didn't catch the first half of what you said.

02:29 - 36.634 It goes it goes to the volunteering, this question.

02:29 - 39.770 It doesn't go to the question of the validity of the waiver

02:29 - 42.106 under or any of you were buying.

02:29 - 44.075 And Connell versus Templin.

02:29 - 47.878 Later events don't affect the validity of the Miranda waiver.

02:29 - 51.349 Once it's done correctly, it is completed.

02:29 - 53.684 And what if the at the outset, the police officer says, Mr.

02:29 - 55.119 Burns, you have the right to remain silent

02:29 - 58.122 and anything you say will not be used against you in a court of law.

02:29 - 00.591 Right. But that's not what happened.

02:30 - 04.261 He was actually told that's exactly what happened later on down the road.

02:30 - 07.865 You're saying you're saying there was an initial valid waiver of Miranda rights.

02:30 - 10.368 Later on in the conversation, a police officer

02:30 - 13.537 abrogated the second half of it, which is I'm taking the consequences

02:30 - 15.172 of you waiving it off. Off the board.

02:30 - 17.775 I think, Your Honor is actually addressing the factual question.

02:30 - 20.811 What the trial court found was that he understood that

02:30 - 25.383 when the officer said those words, it was directed to one specific thing,

02:30 - 28.819 that is the identity of the person who had shot him.

02:30 - 34.425 And with that factual finding, it undermines the idea that the defendant

02:30 - 38.462 didn't understand the Miranda warnings, which he, in writing said that he did.

02:30 - 39.697 So you're

02:30 - 42.733 saying it was a promise within the context of the interview

02:30 - 45.636 with regard to a specific item of information

02:30 - 49.306 not extending beyond that particular item of information?

02:30 - 50.341 Yeah.

02:30 - 54.745 Angel indicated an intent not to use the identity of why I shot him.

02:30 - 56.881 I think we're supposed to stay away from intent,

02:30 - 58.382 as are we supposed to object abuse.

02:30 - 01.352 From an objective perspective,

02:31 - 03.287 we've got to really engage in the subjective

02:31 - 05.423 intent of the police officer or worker.

02:31 - 07.291 Okay, sure. You're saying that.

02:31 - 10.261 You're saying that the the exchange,

02:31 - 13.864 you are going to use this in court on me,

02:31 - 16.700 that this is specifically

02:31 - 19.703 how he responds to the question posed.

02:31 - 21.972 The question in being who shot you?

02:31 - 23.074 Right? Okay.

02:31 - 26.610 It doesn't extend beyond that question that was the trial court's finding. Yes.

02:31 - 30.681 So when the police officer responded

02:31 - 34.351 and said nobody's using anything in court,

02:31 - 37.721 you're saying he

02:31 - 42.393 that that should be interpreted objectively to mean only anything you say

02:31 - 47.331 in response to this specific question, given the context, in the circumstances,

02:31 - 51.068 a reasonable person in the defendant's position would have so understood

02:31 - 52.236 what was said.

02:31 - 54.205 And that, again, was the trial court's finding.

02:31 - 57.208 And it's supported by the record.

02:31 - 58.742 Thank you, Your Honor.

02:31 - 00.811 Thank you.

02:32 - 01.445 Okay.

02:32 - 04.181 Thank you, Mr. Burns.

02:32 - 07.051 We'll hear from

02:32 - 10.020 Mr. Chisholm.

02:32 - 19.263 Good afternoon,

02:32 - 23.134 madam chief Justice Justice's name's Walter Chisholm.

02:32 - 25.202 I represent the appellants matter.

02:32 - 28.205 Keith Phillips may please the court.

02:32 - 32.042 So the fundamental assurance of Miranda

02:32 - 37.515 is the right to choose between silence and speech.

02:32 - 42.653 And that remains unfettered throughout the interrogation process.

02:32 - 45.656 So I'd like to kind of give an example. Mr.

02:32 - 47.892 Burns is saying it's a one and done thing.

02:32 - 49.927 Do you give him a random warnings?

02:32 - 51.128 And after that

02:32 - 55.533 there are if you if you if you waive, you have no remedy if there's a violation,

02:32 - 58.202 regarding police conduct,

02:32 - 01.205 okay, let's say you have a person that's giving Miranda warnings.

02:33 - 04.808 Ten minutes after that, the officer asks, okay,

02:33 - 07.811 I want to know, did you shoot the decedent?

02:33 - 11.682 And defendant says, you know what, wait a minute.

02:33 - 15.753 I think I want a lawyer before I answer that question.

02:33 - 19.323 Am I am I well, am I allowed to not answer the question?

02:33 - 22.359 And, am I allowed to have counsel?

02:33 - 25.996 And the officer says, no, you got to keep talking.

02:33 - 28.966 You can't remain silent.

02:33 - 30.034 And I'm not allowed.

02:33 - 32.136 I'm not giving you a lawyer.

02:33 - 35.105 That is a Miranda violation.

02:33 - 35.706 See that?

02:33 - 39.276 I'm glad you made that example, counsel, because it reminds me

02:33 - 42.813 something I was thinking about when I was thinking about this case.

02:33 - 49.053 Is, is there a distinction between a scenario like you're talking about where,

02:33 - 51.722 presumably in fairly short

02:33 - 54.725 order, after he's mirandized a,

02:33 - 57.628 a suspect,

02:33 - 01.332 asked questions or make statements which,

02:34 - 07.838 indicate that he just he did not understand Moran.

02:34 - 10.841 He did not understand the Miranda warning.

02:34 - 16.313 On the one hand, versus a scenario like this

02:34 - 19.717 where the,

02:34 - 21.952 the suspect hasn't

02:34 - 24.955 indicated a failure to understand

02:34 - 28.626 the Miranda warnings.

02:34 - 34.698 And there's no there's no suggestion

02:34 - 38.435 as to confusion about that

02:34 - 40.838 warning.

02:34 - 45.075 It's it's rather, it's rather a, the misconduct

02:34 - 48.312 type analysis akin to the Fifth Amendment cases, isn't it?

02:34 - 51.315 Well, I think that the law is saying

02:34 - 54.285 that it's the words themselves.

02:34 - 57.321 We can't I think once we start going into the,

02:34 - 00.557 subjective mental processes of what

02:35 - 03.560 the detective meant, what the defendant,

02:35 - 06.463 thought he heard or interpreted,

02:35 - 09.767 then then we get into an area that Miranda,

02:35 - 14.805 teaches that we are not to go into.

02:35 - 19.276 Miranda teaches that we ought to rely on the words themselves

02:35 - 25.382 and the words in this case are that nobody is using anything in court.

02:35 - 28.952 And, that's,

02:35 - 31.355 that's what Miranda says

02:35 - 34.558 we were relying on once we start getting into subjective intent.

02:35 - 38.429 And there's a lot of case law out there that says that you're not to,

02:35 - 41.699 look at this from the perspective of the officer.

02:35 - 45.736 You're you're to rely on the words and how the defendant,

02:35 - 47.671 responded.

02:35 - 51.508 And, so basically, when we in this particular case,

02:35 - 54.845 since we have Miranda that says that the right remains

02:35 - 59.283 unfettered throughout the entire process, process, that is it.

02:35 - 00.784 You know, this isn't.

02:36 - 03.687 And I think that even the words in Miranda

02:36 - 06.290 cut against the Commonwealth's one and done,

02:36 - 08.792 theory.

02:36 - 11.195 Right, because Miranda says it's not one and done.

02:36 - 13.931 It remains council, if I may. Yes.

02:36 - 17.334 I'm sorry, what's your argument that the your client

02:36 - 21.772 did not know the Miranda warnings that he was coerced in making a statement?

02:36 - 23.874 What what what are you trying to tell us?

02:36 - 26.877 I'm trying to tell you, Your Honor, is that

02:36 - 31.882 the statement by the detective that nobody is using anything in court

02:36 - 35.552 directly vitiated the prior warning,

02:36 - 38.689 and that when the detective told Mr.,

02:36 - 43.093 Phillips to the, the suspect in his case that nobody's using anything in court,

02:36 - 45.629 that that violated Miranda

02:36 - 48.766 and that therefore, anything said after that is suppressed.

02:36 - 53.070 So share with me from that moment until the time

02:36 - 56.373 he invokes his Fifth Amendment and says, hey, I want a lawyer.

02:36 - 00.911 What that temporal space

02:37 - 06.683 shows or proves to us that he was well aware of the Miranda warnings

02:37 - 11.889 Act to the point where he exercised them, such that anything he said up

02:37 - 15.459 until that point is admissible based upon his waiver of Miranda.

02:37 - 18.562 So when Mr.

02:37 - 21.832 Phillips, asks whether or not any

02:37 - 24.835 whether or not,

02:37 - 25.636 this is going

02:37 - 29.373 to be used in court, and the detective responds,

02:37 - 34.111 nobody is using anything in court at that particular point in time. Mr.

02:37 - 38.449 Phillips is trying to determine just what the effect of his statement

02:37 - 41.452 is going to be within the context of Miranda.

02:37 - 44.988 And I think that that's a reasonable action for a person who,

02:37 - 48.358 you know, isn't familiar

02:37 - 51.395 with reading, the rights as they are

02:37 - 55.532 within the context of interpret under the totality, the circumstances, analysis.

02:37 - 59.703 How should we consider the fact that your client asked that question

02:37 - 02.873 with regard to identifying the person who shot him

02:38 - 06.076 such that he didn't want to be a snitch, had not?

02:38 - 09.880 And that's the series of questions for which he invoked.

02:38 - 11.348 Are you all going to use that?

02:38 - 16.053 So I think that what happened is that the the Superior Court found

02:38 - 19.823 that the trial court opinion was unsupported by the record.

02:38 - 24.228 What happened was that that discussion about not being a snitch happened

02:38 - 25.529 after Mr.

02:38 - 28.532 Phillips asked, are you going to use this in court on me?

02:38 - 31.802 And it's in the trial court opinion, the Superior

02:38 - 34.805 Court opinion made clear the sequence of events.

02:38 - 38.642 And I think I also made clear in my brief the sequence of events, because the

02:38 - 42.513 Commonwealth's brief, to the extent adopts what the trial court say.

02:38 - 46.550 But if you follow the transcript and I ended the transcript to the brief,

02:38 - 50.120 the discussion about gang retaliation

02:38 - 53.790 and everything like that occurred after Mr.

02:38 - 56.927 Phillips asked, are you going to use this on Call Me?

02:38 - 00.664 And detective said, nobody's using anything in court with regard

02:39 - 03.667 to the identity of the individual who shot him.

02:39 - 06.803 However, when the focus of the investigation

02:39 - 10.407 or the interrogation was on him as a doer,

02:39 - 14.478 that's when he invoked his right to counsel.

02:39 - 16.280 That's when he invoked his right to counsel.

02:39 - 20.584 But I'm saying that the right, the Miranda right, was vitiated

02:39 - 24.054 when the detective made his statement as regard to Mr.

02:39 - 27.891 Phillips being a shooting victim and that sort of thing.

02:39 - 30.961 I think that that question goes to,

02:39 - 34.031 what I, placed in my brief is Rhode Island, Venice.

02:39 - 38.135 The detective's question, was phrased in a way

02:39 - 41.505 that could have elicited an incriminating response.

02:39 - 45.108 That's see, that's I'm glad you said that in response to Justice Roberts question,

02:39 - 48.178 because that I think even if we buy your argument,

02:39 - 53.383 let's say hypothetically, we disagree with, Mr.

02:39 - 57.387 Burns position and say, okay, something detective did later

02:39 - 00.390 could invalidated Miranda waiver just for the sake of argument,

02:40 - 03.460 would you would you agree that there would at

02:40 - 06.496 least need to have to be a causation requirement?

02:40 - 10.801 In other words, would the would you agree in that circumstance

02:40 - 15.839 that the detective's statement would have to cause,

02:40 - 19.743 the suspect to incriminate himself?

02:40 - 22.713 I think that Miranda says that,

02:40 - 27.451 that those rights are clear, and anything contrary to

02:40 - 32.222 what is laid out in the Miranda warnings is the violation in and of itself.

02:40 - 33.857 I don't think that there is.

02:40 - 36.960 I'm not aware of, you know, the detective statement

02:40 - 39.663 having been the cause of anything after it.

02:40 - 44.935 It was the it's the words themselves that violated the, the warnings.

02:40 - 49.773 And at that particular point in time, Miranda was vitiate your counsel.

02:40 - 54.378 You're asking for a very straightforward, clear role, and I commend you for that.

02:40 - 56.980 But if I understand your what you're saying is

02:40 - 00.784 after a suspect or a person under custodial derogation

02:41 - 05.455 waives Miranda knowingly, voluntarily, all that stuff.

02:41 - 09.259 If at any point in time during the examination,

02:41 - 13.130 the interrogators make a

02:41 - 17.434 statement that is directly contradictory of the Miranda warnings.

02:41 - 18.402 All bets are off.

02:41 - 18.869 Miranda.

02:41 - 22.506 Reattach is and and they have to be given the warnings again.

02:41 - 23.306 Right.

02:41 - 25.876 I think it doesn't matter just to complete my thought.

02:41 - 28.779 It doesn't matter in your view of the law.

02:41 - 32.115 What he said that prompted the police officer

02:41 - 35.118 to make that statement, that police officer can make the statement

02:41 - 37.854 going back to Justice works hypothetical.

02:41 - 41.091 We give you Miranda, you wave in the in the the police officer says,

02:41 - 43.393 you know, I know we just did this Miranda thing,

02:41 - 44.628 and you signed the document,

02:41 - 47.631 but I promise you, I'm not going to use anything against her.

02:41 - 49.833 In your view of the world.

02:41 - 51.735 That would vitiate the waiver.

02:41 - 54.971 Yes. And I apologize for, speaking before you were finished.

02:41 - 57.374 Yes, I think Mr..

02:41 - 02.179 With Mr., Burns and the Commonwealth, appear to be relying on this Commonwealth.

02:42 - 05.582 The template right template is not a Miranda case.

02:42 - 08.752 Template is a case where, a

02:42 - 11.755 detective in the course of the interrogation,

02:42 - 19.129 promised R.U.R., to have a, suspect continue with, the interrogation.

02:42 - 23.834 There's a in my mind, there's a big bridge between Miranda

02:42 - 28.405 and RR Templin is a involuntary confession case.

02:42 - 30.073 It's a it's a that's a

02:42 - 33.510 that's a coercion to continue to get them to speak

02:42 - 37.748 versus a and you're again, under your theory of the case

02:42 - 41.351 eight statement directly at odds of somebody's constitutional right.

02:42 - 44.321 That's correct. Your Honor. Okay.

02:42 - 45.021 And it doesn't matter.

02:42 - 48.992 Again in your view the contextual analysis the trial court

02:42 - 52.763 did the COI, the statement that was that prompted the

02:42 - 55.866 the investigator to say what the investigator said.

02:42 - 57.234 None of that matters.

02:42 - 01.304 We look at the words of the investigator in the middle of the interrogation,

02:43 - 02.506 following waiver.

02:43 - 07.210 And if anything in that statement contradicts the waiver itself

02:43 - 10.614 all over that, I would

02:43 - 13.617 and I would, also just kind of briefly,

02:43 - 16.386 provides a sequence of events regarding this interrogation.

02:43 - 17.921 But just so I understand, you agree that

02:43 - 20.257 that's the principle that you're advocating for. Sure.

02:43 - 23.627 I, I would think that there that Miranda is is is bright line.

02:43 - 24.394 Right?

02:43 - 27.531 I think that as soon as the detective's words

02:43 - 32.202 vitiate what he said earlier, as soon as his words

02:43 - 36.306 are contrary to what he said earlier, then that's a bright line.

02:43 - 39.943 And that bright line is that anything that contradicts Miranda

02:43 - 43.046 vitiate the warning and that everything after that.

02:43 - 44.848 Counsel? Yes.

02:43 - 48.652 The United States Supreme Court indicated that, you know, ploys to mislead

02:43 - 53.056 a suspect or allow them into a false sense of security are okay.

02:43 - 55.892 AKA cops can lie,

02:43 - 57.928 cop cops can

02:43 - 00.931 lie in court during these during this marine investigation.

02:44 - 02.132 That's what we have here.

02:44 - 05.869 I think that despite the fact that the question his response was,

02:44 - 08.972 are you going to use I give you the name or are you going to tell the world

02:44 - 10.040 I'm a snitch?

02:44 - 11.408 And he said, no, not at all,

02:44 - 15.412 because technically the Commonwealth could introduce other witnesses.

02:44 - 17.380 I guess we're not planning the strategy.

02:44 - 18.448 The Commonwealth's case.

02:44 - 19.482 But I'm looking at that.

02:44 - 23.820 You're trying to get a clear line rule that said, once an officer lulls

02:44 - 26.857 an individual under a false sense of security

02:44 - 29.793 or it's a ploy to mislead him, that

02:44 - 32.996 right then and there, we're not allowed to accept it's a violation.

02:44 - 35.632 And that's in direct conflict.

02:44 - 39.903 The United States Supreme Court not, though, if it is in direct violation,

02:44 - 43.306 a direct, contradiction to the Miranda warning.

02:44 - 46.743 I think that that seems to be the I don't know, we have cases out there.

02:44 - 49.613 What was the case when the the United States Supreme Court said that

02:44 - 53.683 that he would not contact his lawyer was not a violation.

02:44 - 55.385 You have an right to an attorney.

02:44 - 57.187 That's in the words of Miranda.

02:44 - 58.955 The United States Supreme Court said,

02:44 - 02.325 you know, a police found on former suspect of an attorney's effort to reach him.

02:45 - 06.663 That is not a violation, and that's a direct violation.

02:45 - 09.633 If you follow your theory as to what the language of Miranda said,

02:45 - 10.834 that's what I'm saying.

02:45 - 13.436 Police are allowed to mislead

02:45 - 16.439 aka from our Scotus.

02:45 - 19.876 How we tell me why we should change it.

02:45 - 23.113 You would have to do an Edmunds analysis that before us,

02:45 - 26.349 before we can distinguish our constitutional rights.

02:45 - 27.851 Compare the United States.

02:45 - 31.454 So is, Justice Todd made clear, I think, that,

02:45 - 35.425 a lot of the cases and I'm not aware of the case that you just cited,

02:45 - 39.262 but much of the case law says that the officer is not allowed

02:45 - 44.501 to lie about the dimensions of the Miranda warnings themselves.

02:45 - 46.970 Certainly, he can lie about other things and

02:45 - 48.905 and bring in evidence that doesn't exist.

02:45 - 53.510 But when you go to lying about what your rights are, especially after

02:45 - 56.579 you were just given those rights, then that's a bridge too far.

02:45 - 59.783 And the case that you cited, unfortunately, Justice

02:45 - 02.786 Daugherty not and I certainly didn't mean to jump in before you were finished.

02:46 - 04.921 I don't have that case in front of me.

02:46 - 07.757 You know, your knowledge is a lot higher than mine,

02:46 - 10.727 but I've been around a lot longer, sir, and I think I.

02:46 - 14.731 I'm going to, be on the ship with the chief justice here,

02:46 - 18.868 and that you can't lie about those warnings,

02:46 - 23.173 because otherwise, the warnings in my mind, in my mind, are meaningless.

02:46 - 24.341 But at the issue.

02:46 - 26.409 With all due respect, sir, it's not your mind.

02:46 - 27.510 It's your client.

02:46 - 31.348 And your client invoked his Fifth Amendment right to an attorney.

02:46 - 32.582 Subsequent

02:46 - 35.251 to that comment,

02:46 - 37.620 how are we not to take that and glean

02:46 - 41.791 from that invocation of his rights the fact that he was,

02:46 - 43.293 well aware of his rights

02:46 - 46.963 and he freely spoke up until the point he felt he didn't want to.

02:46 - 52.736 Well, I would think that when he was told that nothing would be used in court,

02:46 - 57.707 but that certainly would have led him into a sense of security that he would have.

02:46 - 59.642 And also, why would he have?

02:46 - 02.545 Why would he have invoked his Fifth Amendment if he's lulled?

02:47 - 06.049 Well, the two pages later in the notes of testimony, what's that for?

02:47 - 07.283 Maybe five minutes?

02:47 - 10.220 No, I think that when he was, invoked his right

02:47 - 13.223 to an attorney that was much further down.

02:47 - 15.992 Yeah, I saw 4:00, I think. Yeah. So,

02:47 - 19.229 there was a lot going on, and, you know,

02:47 - 22.365 they were videos and all that sort of thing had been played by then.

02:47 - 26.336 But when when he was told it was like 230 when that,

02:47 - 31.007 that, you know, thing about the, we're not going to use it against you happened.

02:47 - 32.909 Right.

02:47 - 37.313 So a fairly, fairly straightforward question and,

02:47 - 40.750 I think the court understands that we're going to take a close look at it.

02:47 - 42.952 Do you have anything to say in conclusion?

02:47 - 46.990 I guess, and thank you for allowing me to to, to say something.

02:47 - 50.560 In conclusion, I again, I would

02:47 - 53.563 I would think that,

02:47 - 56.266 and with the hypothetical that I provided

02:47 - 59.269 that if a detective gives the warning

02:47 - 01.938 and if a defendant

02:48 - 05.475 ten minutes after the warning asks a detective,

02:48 - 09.212 after that, after a question is posed to the defendant,

02:48 - 12.315 can I have a lawyer?

02:48 - 15.118 And a detective decides to lie and says, no,

02:48 - 18.121 you're not entitled to a lawyer, and you have to keep talking.

02:48 - 21.591 I think that that is, conduct

02:48 - 25.862 that, many courts would find reprehensible.

02:48 - 28.798 I think that that would be a direct violation of Miranda,

02:48 - 31.801 especially with the with the language that that,

02:48 - 34.337 right,

02:48 - 37.740 to choose between silence of speech remains unfettered.

02:48 - 42.445 And with that, I think that the answer to the question

02:48 - 45.949 that this court posed, would have been answered

02:48 - 50.420 in the hypothetical that once a valid, a waiver is, provided

02:48 - 55.592 that, conduct by the police can certainly, vitiate that waiver.

02:48 - 57.660 All right. Thank you. Thank you so much.

02:48 - 58.495 Pleasure. Mr.

02:48 - 00.930 Burns, it's nice to see you back in our courtroom.

02:49 - 01.865 I trust your feeling.

02:49 - 03.433 Well, good.

02:49 - 06.136 Welcome back. Welcome back to.

02:49 - 08.838 The next

02:49 - 11.841 case on the court's docket is Smith versus Karen Cat.

02:49 - 14.344 And this is a medical malpractice case.

02:49 - 18.615 That will allow the court to decide, what evidence is needed

02:49 - 22.418 to prove causation in a medical malpractice case.

02:49 - 25.788 This case has a history.

02:49 - 30.160 The plaintiff was diagnosed with breast cancer based on a pathology report

02:49 - 34.497 she received chemotherapy, but later

02:49 - 39.269 it was determined that the patient, Tonya Smith, actually had lymphoma.

02:49 - 42.472 Miss Smith ultimately,

02:49 - 46.042 did not recover and died in January of 2019.

02:49 - 50.847 Her husband filed suit against a number of people, including Doctor

02:49 - 55.752 Annie Karen Cat, who was the oncologist at Cancer Care Associates of York.

02:49 - 00.089 The case went to trial, and after the plaintiff rested

02:50 - 04.861 the plaintiffs case, the trial court granted a non suit, which is a dismissal

02:50 - 08.898 in the middle of trial because the trial court found that

02:50 - 14.204 the plaintiff's expert testimony was not certain enough on the issue of causation

02:50 - 17.907 to allow the jury to find in favor of the plaintiff

02:50 - 21.945 and against Doctor Karen Cat and Cancer care associate.

02:50 - 25.048 The legal standard for

02:50 - 29.752 causation in medical malpractice cases can either be what's known as,

02:50 - 34.524 but for causation or an increased risk of harm.

02:50 - 35.592 There can be evidence

02:50 - 40.430 that the doctor's conduct increased the risk of harm to the patient,

02:50 - 43.800 so that the patient doesn't have to show that to a degree of certainty,

02:50 - 47.937 and if there is evidence of that sufficient from an expert,

02:50 - 53.576 test, it from expert testimony, then the trial court can allow a jury

02:50 - 57.480 to hear that evidence and make a determination as to whether

02:50 - 01.351 the doctor's conduct was the factual cause of the harm.

02:51 - 07.423 In this case, the the plaintiff relied on this increased risk of harm theory.

02:51 - 11.194 But the trial court said that the evidence

02:51 - 14.330 was not sufficient, it wasn't certain enough,

02:51 - 20.203 it was speculative, and it was too vague, the trial court said.

02:51 - 23.339 Even though Pennsylvania does allow in some cases,

02:51 - 28.411 this relaxed standard for causation, there, it's not in every case,

02:51 - 32.515 and the plaintiff must show a meaningful, scientifically supported,

02:51 - 36.619 increased risk that the doctor's conduct made things worse.

02:51 - 41.791 The judge said that medical causation must be based on science and not guesswork.

02:51 - 44.794 Otherwise, juries would be left to guess.

02:51 - 48.231 The Superior Court,

02:51 - 51.868 disagreed with the trial court and reversed.

02:51 - 57.173 The Superior Court said that in its view, the expert testimony was sufficient

02:51 - 01.277 to allow a jury to decide the issue of factual cause.

02:52 - 03.212 Importantly, the trial.

02:52 - 06.616 The Superior Court did not say that the doctor was negligent,

02:52 - 10.286 only that there was enough evidence on the issue of causation

02:52 - 13.456 to let the jury decide that.

02:52 - 16.659 So the Pennsylvania Supreme Court accepted this appeal.

02:52 - 19.996 To answer one key question did the Superior

02:52 - 23.399 Court apply the increased risk of harm rule properly?

02:52 - 26.636 And that comes from a case versus Hamill versus baseline.

02:52 - 29.906 In plain English, the Supreme Court will decide

02:52 - 33.343 how strong expert testimony must be on the issue of causation,

02:52 - 37.146 what counts as increased risk of harm evidence,

02:52 - 41.484 and how strong and definite does it need to be from an expert?

02:52 - 45.621 And when a case like this should be dismissed at the

02:52 - 49.592 at the concert stage, or should be allowed to go to a jury.

02:52 - 53.663 So with that, let's turn to the courtroom and hear the arguments.

02:52 - 55.465 And Smith versus Karen Kay.

02:52 - 00.570 Good afternoon.

02:53 - 01.471 Your Honors.

02:53 - 04.040 My name is Michael Broski.

02:53 - 08.611 It's been my privilege over these many years to represent Archer.

02:53 - 11.581 Annie cannot get,

02:53 - 14.851 I think it's important at the outset

02:53 - 18.688 that we have a clear understanding of the undisputed facts

02:53 - 21.691 of this case.

02:53 - 25.862 In 2000, 16.

02:53 - 31.300 Tonya Smith developed pain in her shoulder.

02:53 - 34.170 She went to an orthopedist.

02:53 - 37.573 The orthopedist ends up doing some cervical spine surgery.

02:53 - 40.243 Ultimately, Mr.

02:53 - 45.448 Smith has an MRI which reveals suspicions of,

02:53 - 49.452 metastatic lesions.

02:53 - 52.488 She goes to a, an oncologist

02:53 - 55.491 surgeon who biopsies her

02:53 - 56.626 biopsies.

02:53 - 58.761 Delusion that was seen on that MRI.

02:53 - 01.230 This is months before she ever comes.

02:54 - 04.233 The doctor can get.

02:54 - 08.704 The specimen we send to a, well, well-established

02:54 - 12.542 pathology lab at WellSpan, in York.

02:54 - 17.613 It was interpreted by Doctor Wright,

02:54 - 21.851 who was originally a defendant in the suit, as well as the other,

02:54 - 27.256 health care providers involved in her care.

02:54 - 31.627 He diagnosed it as adenocarcinoma,

02:54 - 36.332 most consistent with breast cancer.

02:54 - 39.902 There was not a doubt

02:54 - 42.872 in his experience, educated mind

02:54 - 47.043 that this was a carcinoma, not a lymphoma.

02:54 - 50.480 He made that perfectly clear in the two trials that,

02:54 - 54.550 he participated in.

02:54 - 58.321 Doctor Wright himself indicated that

02:54 - 01.557 in terms of cancer diagnosis,

02:55 - 04.560 the buck stops with pathology.

02:55 - 07.964 There's a phrase in medical oncology.

02:55 - 11.701 Here's a use only by medical oncologist.

02:55 - 14.704 I think, and the phrases,

02:55 - 17.940 without meat, don't treat,

02:55 - 22.378 which in essence means medical oncologist

02:55 - 26.249 necessarily have to rely upon

02:55 - 29.652 what the pathologist says

02:55 - 32.922 the cancer, it's identifying it

02:55 - 36.726 under the microscope, identifying it histologically.

02:55 - 41.264 In this case, it's not only Doctor Wright

02:55 - 45.401 who looked at these pathology specimens,

02:55 - 49.739 but two other board-certified pathologists

02:55 - 53.042 looked at the tissue

02:55 - 54.210 themselves.

02:55 - 57.446 They two came to the exact same conclusion,

02:55 - 02.451 and one of the pathologists was, in fact a hematoma pathologist,

02:56 - 06.722 a person who is specifically trained

02:56 - 09.725 in looking for lymphomas.

02:56 - 13.129 He called it carcinoma, not no coma.

02:56 - 17.233 So this is all before Doctor Kennicott ever became involved.

02:56 - 23.472 Then the case was submitted to the WellSpan

02:56 - 27.109 Tumor Board, which is you may be familiar with it.

02:56 - 27.910 They disappear.

02:56 - 32.148 There's a multidisciplinary group of, health care providers, specialties.

02:56 - 35.751 They look at various cases.

02:56 - 38.754 It was concluded there through the tumor board

02:56 - 42.425 that we're dealing with adenocarcinoma,

02:56 - 45.428 most likely of breast origin.

02:56 - 45.795 Right.

02:56 - 49.265 Keep in mind, your honors, that as of,

02:56 - 53.202 February of 2000, 17.

02:56 - 57.239 Tonya Smith had

02:56 - 00.242 metastatic stage four cancer.

02:57 - 04.513 So cancer, if I may interrupt you, I'm trying to follow your logic.

02:57 - 05.781 Are you sharing with me?

02:57 - 09.318 The way I understand, this was the pathologist diagnosis was.

02:57 - 10.620 And what was that?

02:57 - 13.656 Endo carcinoma glands around the breast of the heart.

02:57 - 19.462 That was in 2017, the oncologist, performed chemo and radiation.

02:57 - 22.331 The chemo showed no improvement.

02:57 - 23.933 Radiation slight.

02:57 - 28.070 Then in 2018, the cancer moved to the stomach for the abdomen.

02:57 - 31.474 And then 2018, the gall bladder is removed.

02:57 - 36.412 A new pathologist declares that it's the ALK positive diagnosis.

02:57 - 39.749 That's correct with those facts.

02:57 - 43.285 If the oncologist is introducing chemicals to the patient

02:57 - 46.555 based upon the pathological diagnosis,

02:57 - 49.558 with no positive response,

02:57 - 52.862 is it incumbent upon the oncologist

02:57 - 55.665 to communicate with the pathologist

02:57 - 58.668 to discuss this and

02:57 - 00.536 the fact that that didn't happen?

02:58 - 03.706 Did that not increase the risk of harm by.

02:58 - 05.341 I'm not so sure.

02:58 - 09.512 I don't have that extent of a medical oncology knowledge, Your Honor.

02:58 - 11.547 But it's a simple question.

02:58 - 14.550 Well, it is a simple question, but it's it's,

02:58 - 20.423 for the oncologist to come to that conclusion, given

02:58 - 25.995 that she's presented with the diagnosis of stage four adenocarcinoma.

02:58 - 30.199 Your honors question is assuming that everybody is,

02:58 - 35.004 receives or

02:58 - 38.874 appreciates the same, reactions

02:58 - 41.911 over to chemotherapy and radiation,

02:58 - 45.147 and no two patients are alike.

02:58 - 47.483 I think that that's absolutely not part of the question.

02:58 - 50.519 The question is, or the comment or the concern I have is,

02:58 - 52.121 is that the oncologists

02:58 - 55.691 introduced the chemicals based upon the pathological diagnosis.

02:58 - 59.295 Therefore, the oncologist should be aware of the presence

02:58 - 02.331 or the results based upon his or her experience

02:59 - 05.134 as to what is treatable for that type of carcinoma.

02:59 - 08.037 It was in fact not treatable. Slight.

02:59 - 10.639 And in fact, when you find out that CL K positive, it's

02:59 - 12.842 a completely different type of diagnosis.

02:59 - 15.845 I could only answer that based upon my experience.

02:59 - 19.014 And that is,

02:59 - 21.317 no medical oncologist.

02:59 - 23.419 When they come up with,

02:59 - 26.422 cancers that they're having, they're in transit.

02:59 - 29.525 They're they're having difficulty achieving remissions.

02:59 - 33.696 They tweaked the chemotherapy, they installed

02:59 - 36.999 different modes of therapy to treat

02:59 - 41.003 the cancer that they were told existed.

02:59 - 45.474 You know, pick up the phone and say, oh, don't you know, doctor so-and-so?

02:59 - 48.410 Are you sure this is carcinoma?

02:59 - 52.114 In my experience, I've never seen any medical oncologist do it.

02:59 - 53.482 Such a thing.

02:59 - 56.485 What they do is they try to

02:59 - 59.088 manipulate or change the chemotherapy

02:59 - 02.958 in order of hopes of achieving a favorable result.

03:00 - 07.229 It doesn't always happen, and frequently it doesn't happen.

03:00 - 11.634 Stage four breast cancer is a killer.

03:00 - 14.436 Council counsel, may I?

03:00 - 18.374 Right in the middle, Chris Justice Donahue let me add a couple of facts

03:00 - 21.710 from the record to add to justice, doctor, this question.

03:00 - 22.578 Yes, ma'am.

03:00 - 25.581 What your client had that the,

03:00 - 30.386 the pathologist did not have was a CT of the chest,

03:00 - 34.957 a diagnostic mammogram, a diagnostic ultrasound, and a Pet scan,

03:00 - 39.862 none of which were consistent with the diagnosis of breast cancer.

03:00 - 44.099 No, no, no, your honor, I see what you're saying is true in the record.

03:00 - 48.571 But what that means is that those studies were,

03:00 - 51.273 performed

03:00 - 53.976 to assess the extent of the disease.

03:00 - 00.015 Okay, well, let me, let me, let me go on because there was a standard of care

03:01 - 05.654 expert in this case that contradicted just about everything you just said.

03:01 - 07.957 The plaintiffs,

03:01 - 12.628 had an expert on the standard of care for an oncologist,

03:01 - 16.165 and that expert on the standard of care testified

03:01 - 19.501 that it was, in fact, the duty

03:01 - 23.973 of this oncologist, under these circumstances,

03:01 - 28.744 to consult with it, had to adjust on the chosen course of treatment.

03:01 - 29.445 Yes, ma'am.

03:01 - 29.879 Okay.

03:01 - 33.115 Well, that gets him to the jury on that question.

03:01 - 35.351 Does it not owe on the standard of care?

03:01 - 37.453 Okay. Well, that's all you've been talking about.

03:01 - 40.923 That's what I mean, that oncologists don't do that.

03:01 - 44.493 And oncologists only follow what the pathologist said.

03:01 - 48.364 I mean, you may have had an expert who said exactly that,

03:01 - 52.835 but there is an expert in this case that said something entirely different.

03:01 - 57.840 And actually the we have the increased risk issue.

03:01 - 01.043 And I'm interested in your view of that.

03:02 - 03.646 Let me let me try to focus a little bit more.

03:02 - 04.680 Okay.

03:02 - 07.383 And your analysis is correct.

03:02 - 08.250 Okay.

03:02 - 13.322 But in this case what we're talking about is their theory.

03:02 - 17.159 The state's theory was against doctor cannot.

03:02 - 21.330 That was the issue to pick up the phone and communicated it with counsel.

03:02 - 23.098 Let me let me interrupt you here because I,

03:02 - 24.133 we have been letting

03:02 - 27.136 you kind of go on this duty and breach thing and standard of care.

03:02 - 30.873 We only took the issue of causation, at least as I understand it.

03:02 - 33.575 We took camel and bash line.

03:02 - 36.111 We're not here to talk about whether your client had a duty,

03:02 - 37.980 whether your client breached the duty.

03:02 - 42.217 We're simply here to talk about whether the expert report that was used to say

03:02 - 45.487 that the alleged breach of the duty,

03:02 - 49.024 increase the risk of harm trying to get there.

03:02 - 50.159 Well, that's where you should have started,

03:02 - 51.794 because that's the only issue we took.

03:02 - 53.495 So if you could get to that really quickly,

03:02 - 55.798 I'd appreciate it, because I think there's a link.

03:02 - 57.666 But I will do that. Okay.

03:03 - 02.871 Their standard of care expert.

03:03 - 07.242 And if and if you go back to Hamel and, the,

03:03 - 11.146 the Hamill court, and it was the venerable Sir

03:03 - 14.149 Wick who, who gave the testimony,

03:03 - 18.387 used to use the words considerable chance of survival.

03:03 - 22.191 The case is freaks and turned a substantial

03:03 - 25.194 possibility of survival

03:03 - 28.664 in this case.

03:03 - 32.201 There was no

03:03 - 35.204 pathology expert called by the state.

03:03 - 41.977 There is an evidentiary nexus on causation

03:03 - 46.081 that's missing here.

03:03 - 49.051 And that nexus is

03:03 - 52.388 what was the standard of care of the pathologist,

03:03 - 56.558 I think I think there and let me back a little bit.

03:03 - 58.694 I think

03:03 - 01.697 I think their claim is simply,

03:04 - 05.367 you know, breaking it down into its most simple form

03:04 - 09.104 is had your client,

03:04 - 12.808 discerned

03:04 - 15.844 the proper diagnosis or had any medical professional who,

03:04 - 19.381 whether it defendant's word discerned the proper diagnosis within a period

03:04 - 24.153 within a appropriate period of time, there was a increased risk

03:04 - 27.589 or there was a that your failure to do that increase the risk

03:04 - 32.061 that she would not live longer, increase the list, that her

03:04 - 35.564 her death would occur sooner, and that for a family

03:04 - 39.501 that's precious days with their loved ones

03:04 - 43.472 that they had no hope of having, no hope of having.

03:04 - 45.474 Now, would they have had it?

03:04 - 47.810 That doesn't seem to be what Hamill requires.

03:04 - 49.711 Hamill only requires.

03:04 - 53.082 Was there an increased risk that prevented them from that hope

03:04 - 54.650 from from that happening?

03:04 - 57.286 Well, let's talk about ALK positive,

03:04 - 00.289 large B-cell lymphoma that

03:05 - 03.425 current to the time these cases were tried, your honor,

03:05 - 07.262 there were only 150 reported cases worldwide

03:05 - 10.599 of this disease

03:05 - 14.970 by the time it's diagnosed statistically,

03:05 - 17.973 there is a

03:05 - 22.010 8 to 22 month period, and then you die.

03:05 - 24.813 Counsel, I know where you're going. Let me interrupt you just for a second

03:05 - 27.382 there. Problem is, there's an expert report.

03:05 - 31.253 Your problem is there's an expert report on the other side.

03:05 - 35.591 I mean, and I may you may disagree with the expert.

03:05 - 37.993 Doctor Sofer is the expert.

03:05 - 38.927 You're referring to.

03:05 - 42.664 And if you read his testimony,

03:05 - 45.934 you will see that it's total equivocation.

03:05 - 50.606 He admits that there is no recognized standard

03:05 - 53.375 of care treatment for this disease.

03:05 - 56.578 He recognizes that statistically,

03:05 - 59.982 Tanya Smith was going to die.

03:06 - 04.720 She in fact outlived the norm for this disease.

03:06 - 08.490 Your argument go to the damages and not to the causation.

03:06 - 12.194 I mean, as I understand Hamill versus Vash line,

03:06 - 15.964 the plaintiffs have to show that the physician failed to exercise

03:06 - 19.101 reasonable care, and they had an expert that said that.

03:06 - 22.905 And then two, such failure increased the risk of physical harm

03:06 - 23.906 to the plaintiff.

03:06 - 28.310 So what you're arguing before us here, and they had two experts

03:06 - 31.313 that said that doctor can cuts care.

03:06 - 34.750 Substantially deprived Mrs.

03:06 - 37.619 Smith of, opportunity for a longer life.

03:06 - 41.523 So what you're arguing to us is just merely what you could argue

03:06 - 43.659 to the jury about the damages.

03:06 - 46.795 I disagree.

03:06 - 49.831 And and I quote just this is from source.

03:06 - 53.068 So for their causation expert

03:06 - 54.836 question.

03:06 - 57.573 So you can't say with any degree of certainty

03:06 - 02.477 that had ALK positive B-cell lymphoma treatment being it provided at the outset,

03:07 - 05.547 her course would have been any different.

03:07 - 08.550 You can't say that with any certainty, can you?

03:07 - 11.820 His response was, I don't know

03:07 - 14.289 what her survival would have been.

03:07 - 17.359 Well, that's why Hamill exists, because

03:07 - 20.729 no one can say that with any level,

03:07 - 24.299 of any level of reasonable, let alone medical certainty.

03:07 - 28.036 But Hamill allows in these situations

03:07 - 31.473 an expert to opine that maybe the ultimate,

03:07 - 35.010 maybe death was the ultimate outcome, regardless of the diagnosis.

03:07 - 42.050 But what was deprived was the opportunity to potentially live longer

03:07 - 46.421 or have a different have or have, you know, have not have your death hastened.

03:07 - 50.325 Yes, you're on your right and

03:07 - 54.429 and the plaintiffs in these settings are required

03:07 - 58.500 to give the jury at least some indication

03:08 - 02.304 as to the likelihood of that

03:08 - 05.941 happening, the likelihood that this woman would have been,

03:08 - 09.511 you know, the one out of the 150.

03:08 - 13.382 No, no, I think I think didn't the expert here say something to the effect of

03:08 - 17.319 if the diagnosis would have happened earlier, she could have gotten into

03:08 - 21.990 some form of a treatment that may have, to a reasonable degree

03:08 - 26.862 of medical certainty, extended her life beyond what it was in your honor.

03:08 - 28.063 I don't think that's enough. Right?

03:08 - 32.067 Or have you said a substantially better opportunity for a longer life

03:08 - 33.302 beyond when she died?

03:08 - 35.437 That's testimony. And continue.

03:08 - 39.408 If you continue to read his testimony, he qualifies all that.

03:08 - 43.278 He recognizes that there is no standard treatment for the disease.

03:08 - 46.481 And that at best, there's a hope

03:08 - 49.718 that the person might

03:08 - 52.721 be the one who will have,

03:08 - 56.124 favorable,

03:08 - 00.829 well, favorable just means one more day or favorable for a family.

03:09 - 03.832 Dealing with a cancer diagnosis means just one more day.

03:09 - 06.935 There's there's, you know,

03:09 - 09.938 but there has to be some evidence of that, your honor.

03:09 - 12.040 Just can't have.

03:09 - 15.977 If if how would an expert prove that if the Superior Court is right,

03:09 - 19.414 all players need

03:09 - 22.517 is to have the magic word said by an expert.

03:09 - 27.923 It increase their risk of harm and prevent her from he

03:09 - 30.926 or she from having a more prolonged life.

03:09 - 32.928 That's all they need to say.

03:09 - 35.130 And I don't think that's what Hamill stands for.

03:09 - 36.398 What do you think of percentages?

03:09 - 40.068 I mean, I think it has to be equated to,

03:09 - 42.270 what the law

03:09 - 45.273 demands of reasonable medical surg.

03:09 - 48.410 The law says this is not 5050.

03:09 - 49.845 So for did say he would.

03:09 - 53.415 All of his answers were given to a reasonable degree of medical certainty.

03:09 - 55.117 Yes, he did so.

03:09 - 58.653 So again, again, magic words without substances.

03:09 - 00.155 Is it meaningless?

03:10 - 03.158 Well, is it isn't substance for the jury?

03:10 - 07.362 I submit, Your Honor,

03:10 - 11.400 that the jury cannot be presented with the case.

03:10 - 14.403 And this is what Judge Mangas wrestled with.

03:10 - 18.106 He heard this testimony.

03:10 - 21.476 He felt compelled to exercise

03:10 - 24.479 his gatekeeping responsibilities to say

03:10 - 27.783 this is pure conjecture.

03:10 - 30.752 I really can't let this go to the jury.

03:10 - 34.055 He was doing his job.

03:10 - 38.560 There is no evidence

03:10 - 40.429 to give to the jury.

03:10 - 43.231 Okay, well, he's saying there is an increase variance,

03:10 - 46.234 but how much was it increased by?

03:10 - 51.006 How how was that the jury supposed to make that determination?

03:10 - 53.642 What should have lived a day longer?

03:10 - 57.212 How much is that worth?

03:10 - 59.281 Well, only only God knows that.

03:10 - 00.315 Only God knows that.

03:11 - 04.352 The point being is, you can't just simply say these magic words

03:11 - 07.956 without giving the jury some idea what you're talking about.

03:11 - 10.759 Some percentage has to be.

03:11 - 14.463 And again, I equate it to the reasonable

03:11 - 17.432 degree of medical certainty that the law demands.

03:11 - 20.402 It's not a 5050.

03:11 - 21.670 Okay.

03:11 - 26.041 Again, I didn't see in for his testimony him saying it's 5050.

03:11 - 30.312 Oh he didn't I'm just answering your question regarding that.

03:11 - 34.082 You you said he said he said I'm not clear on his whether you,

03:11 - 39.654 whether you're saying he was violated or you're saying you want him

03:11 - 42.757 to be amended by us.

03:11 - 46.061 I want further clarification.

03:11 - 49.064 The panel. Well, I'll brief up my question.

03:11 - 52.067 Are you standing here today to tell us that

03:11 - 56.605 the Superior Court's decision runs afoul of Hamel versus Bagley?

03:11 - 59.941 Or are you standing here to ask us to change

03:12 - 03.311 the rule of Hamel versus Ashland, or both?

03:12 - 07.749 The reason why I say the Superior Court misapplied Hamel,

03:12 - 11.553 because my interpretation of Hamel is that it requires

03:12 - 15.357 significantly more than simply an expert

03:12 - 18.360 saying it increased the risk of harm.

03:12 - 21.129 Okay, Council, can I follow up on that

03:12 - 23.899 right here in the middle again?

03:12 - 26.368 I don't know what your classmates are to gain.

03:12 - 29.371 Yeah. Oh, is that right? Oh, there you go.

03:12 - 32.607 We're senior members for senior members of the board.

03:12 - 35.010 I thought we had time.

03:12 - 35.477 You know, time.

03:12 - 37.812 You can tell us all the stories.

03:12 - 38.313 Go do.

03:12 - 42.617 So let me just let me just sort of clarify.

03:12 - 45.654 I mean, for the sake of our discussion here,

03:12 - 50.258 the plaintiff's expert did a whole lot more than say, oh, just increase the risk.

03:12 - 54.062 I mean, the plaintiff's expert was very clear in saying

03:12 - 57.999 any chance that this patient had

03:12 - 04.773 was taken away by the defendant's conduct for two reasons.

03:13 - 08.143 It was the delay

03:13 - 11.179 in using the appropriate treatment

03:13 - 14.182 for the type of cancer that she had,

03:13 - 18.253 and secondly, by using the chemotherapy

03:13 - 22.023 that was inappropriate for such a long period of time.

03:13 - 25.493 It debilitated her to the point that even using

03:13 - 28.730 the new drugs would not have been effective.

03:13 - 33.435 So, I mean, that's a whole lot more than saying, oh, it increase the risk.

03:13 - 34.269 Yeah.

03:13 - 38.640 I mean, he the he went into into a lot of detail on these,

03:13 - 42.077 the consequences of the failure of,

03:13 - 45.480 of the defendant in this case,

03:13 - 49.718 if you continue to read Sofer, if he uses the word in the hopes

03:13 - 55.190 that the treatment for ALK positive lymphoma would work,

03:13 - 57.158 Hamel says

03:13 - 02.497 when a defendant's negligent action or inaction has effectively terminated

03:14 - 07.135 a person's chance of survival, which is exactly what happened

03:14 - 10.538 here, according to according to the plaintiff's expert.

03:14 - 14.009 See, I disagree with what it's from panel.

03:14 - 18.079 No, no, no, I know that's what Hamill says, and I agree with that.

03:14 - 19.347 Okay.

03:14 - 23.451 But what I disagree with is, is your, position

03:14 - 27.188 that Sofer gave that to gave that evidence to the jury.

03:14 - 30.892 Well, because because you were crate Hamill was survival.

03:14 - 31.760 Correct.

03:14 - 36.131 You you're you're saying that Hamill only applies in cases where the person

03:14 - 39.134 would have lived and eventually succumbed to a natural death?

03:14 - 40.902 No, that's not what I'm saying.

03:14 - 43.138 What it sounded like that's what you were saying. Okay, so.

03:14 - 47.042 So do you believe Hamill can apply where the negligence,

03:14 - 50.211 eliminated the chance

03:14 - 53.214 to live longer than they did?

03:14 - 54.783 Yes. Okay.

03:14 - 56.184 Isn't that what this case is about?

03:14 - 58.820 The chance to live longer than she did? It is.

03:14 - 02.924 And it goes to the evidence required under the law

03:15 - 06.461 to allow the jury to make that decision.

03:15 - 08.296 That's what I'm talking about.

03:15 - 12.567 You agree with the proposition, counsel, that in increased risk.

03:15 - 17.939 I mean, this is a this has been a recognized theory since at least.

03:15 - 20.942 Hamill. So what do you do?

03:15 - 23.611 You agree that in,

03:15 - 27.816 increased risk of harm cases, causation is proven

03:15 - 32.454 in a way different from conventional professional negligence cases,

03:15 - 36.257 necessarily, because, you know, you're proving a negative,

03:15 - 39.260 so to speak?

03:15 - 41.830 I do agree with that.

03:15 - 43.398 I agree with what you said. Okay.

03:15 - 49.037 So given given that you subscribe to the you you subscribe to him.

03:15 - 50.572 Well, I take it then,

03:15 - 53.074 why isn't this just a

03:15 - 56.077 battle the experts and the juries get after the decision?

03:15 - 00.081 Because it's it's the the quality of the evidence

03:16 - 03.218 that the expert provided that's deficient here.

03:16 - 07.055 My, my understanding of Hamill

03:16 - 11.493 is that an expert needs to provide the jury

03:16 - 14.662 with at least some basis

03:16 - 18.800 for them to conclude what that chance was,

03:16 - 22.370 what that risk was.

03:16 - 25.106 None of that happened here.

03:16 - 29.177 So he spoke in terms of hoping that treatment

03:16 - 32.380 that has never worked for anyone else will work this time,

03:16 - 38.620 that it is true that in Hamill, an expert who happened to share my last name

03:16 - 41.923 or whose last name I have, it sure did give a number.

03:16 - 46.127 But the the post Hamill cases have never held, have they,

03:16 - 47.929 that you need a percentage?

03:16 - 52.033 No, they've never said that a the doctor.

03:16 - 53.134 Is that what you're saying?

03:16 - 56.538 I'm I'm suggesting that it again

03:16 - 59.474 I'm coming back to what Your Honor started with.

03:16 - 02.143 I'm coming back to the legal requirement

03:17 - 05.146 that is, viewed upon in the law

03:17 - 07.816 as what it takes,

03:17 - 12.720 but what reasonable medical certainty means it's not 5050.

03:17 - 15.990 It has to be greater.

03:17 - 17.559 It's not probable.

03:17 - 18.860 It's not possible.

03:17 - 19.327 It's not.

03:17 - 21.429 Maybe

03:17 - 24.432 it has to be more

03:17 - 27.602 than a simple chance.

03:17 - 31.573 I'm saying that Hamill equates the,

03:17 - 35.276 the role of increased risk

03:17 - 37.712 to the degree

03:17 - 40.415 the law demands and

03:17 - 43.685 and the reasonable medical certainty definition.

03:17 - 46.287 Got to stand.

03:17 - 48.423 Thank you.

03:17 - 49.891 A final question from me.

03:17 - 53.027 I'm not sure hearing your argument

03:17 - 57.031 that we're actually as focused on what did Hamill mean?

03:17 - 03.104 Or how is Hamill interpreted today as we are on the error review

03:18 - 08.910 that you seem to be asking us to conduct on what happened, below,

03:18 - 11.379 to me, this is

03:18 - 14.382 sounding more like error review.

03:18 - 18.720 Again, Your Honor, I think it's both.

03:18 - 21.789 I, I would like,

03:18 - 24.492 this court

03:18 - 27.128 to provide a clear definition

03:18 - 30.131 of increased risk of harm

03:18 - 32.700 to to equate it

03:18 - 35.303 to what the law demands with,

03:18 - 39.407 with, with respect to what the definition of original medical certainty is.

03:18 - 42.443 And you'd like that to be a percentage.

03:18 - 45.513 Well, I'd like it to be just like a reasonable medical certainty.

03:18 - 48.149 It has to be more than 50%.

03:18 - 51.319 It has to be more than just mere possibility.

03:18 - 56.824 Counsel can can I just you know, we did look at this entire issue, of,

03:18 - 00.795 this statistical uncertainty of survival.

03:19 - 06.935 In 1990, just former justice, Kathy wrote the opinion in Mitchell.

03:19 - 08.770 Mitchell felt,

03:19 - 13.107 I mean, and look looked at the issue and, held

03:19 - 18.012 that a defendant can escape liability because of statistical possibility

03:19 - 21.182 that harm would have resulted without the negligence.

03:19 - 25.520 I mean, we've addressed the issue that you're raising.

03:19 - 28.022 She would have died anyway. I mean, that's your defense.

03:19 - 30.591 I mean, in this case, I'm not talking about that.

03:19 - 33.594 I'm not being sure. But we looked at that.

03:19 - 36.564 And so you can't you can't rely on that.

03:19 - 39.867 If there was if any chance

03:19 - 43.504 of further survival in this

03:19 - 48.009 case was taken away because of the defendant's negligence,

03:19 - 52.313 that squared Hamill, the baseline is it goes to the chance.

03:19 - 53.314 Yeah, yeah.

03:19 - 56.484 But if you look at him talking

03:19 - 59.487 in terms of considerable chance,

03:20 - 02.957 language of, Professor Wick.

03:20 - 07.662 Okay, it it it's intended to,

03:20 - 11.466 demand evidence in a prima patient basis

03:20 - 14.635 to permit the jury

03:20 - 17.638 to make an assessment as to

03:20 - 21.442 what that increase was.

03:20 - 23.644 Is it,

03:20 - 26.581 if the if the law is going to be,

03:20 - 29.717 if it increases it one more day, it prolongs life.

03:20 - 32.153 One more day, and so be it.

03:20 - 34.589 Then say that.

03:20 - 34.922 All right.

03:20 - 37.325 We understand what you're asking us.

03:20 - 42.964 And, if there are no other questions by the justices, we'll hear from Miss Slater.

03:20 - 44.665 Thank you, Your Honor. It's okay.

03:20 - 45.333 Thank you.

03:20 - 48.369 You folks have an interesting potpourri of issues like we do.

03:20 - 50.738 Thank you, Mr. Bartowski. Thank you. Classmate.

03:20 - 54.175 For you.

03:20 - 56.010 Yeah. Guidance.

03:20 - 58.980 See you there.

03:20 - 01.382 You want to pull that mic down?

03:21 - 03.117 Pull it down a lot. Yeah.

03:21 - 05.253 Thank you.

03:21 - 06.554 Good afternoon, Chief Justice

03:21 - 09.557 Dodd and honorable justices of the Supreme Court.

03:21 - 10.892 May it please the court.

03:21 - 13.127 My name is Underly Decker.

03:21 - 18.032 And here, on behalf of the estate of Miss Tanya Smith at counsel's table are Mr.

03:21 - 19.700 Thomas Hall from the early,

03:21 - 23.371 Hall law firm in Lancaster, Pennsylvania, who represented the family at trial,

03:21 - 26.207 and Mr. Charles Becker,

03:21 - 29.143 who needs no further introduction,

03:21 - 31.112 has received his introduction from you

03:21 - 34.082 earlier today.

03:21 - 37.852 Let me pick up with Hamill and missile felt.

03:21 - 39.220 And missile felt.

03:21 - 44.826 The court discussed two separate concepts, with respect to medical certainty.

03:21 - 48.096 And I'm going to start from there because,

03:21 - 51.499 the first portion of the would with missile file

03:21 - 55.203 called test one and test two, part one and part two of the test,

03:21 - 00.108 the first portion of it, truly addressed the, causation issue.

03:22 - 03.144 And, what miss of Elsa said was

03:22 - 07.181 that a, an expert testifying to causation is required

03:22 - 10.952 to testify to a reasonable degree of medical certainty that,

03:22 - 14.822 the negligence that is at issue in the case

03:22 - 20.428 increase the risk of harm and ultimately led to the injury complaint of,

03:22 - 22.563 a trial.

03:22 - 25.566 So taking, that framework,

03:22 - 30.771 and applying it to the facts of this case, what we have is Doctor Schaefer

03:22 - 34.375 testifying that the delay in the diagnosis of lymphoma

03:22 - 37.545 increased the risk of Miss Smith

03:22 - 40.581 succumbing to, to lymphoma.

03:22 - 45.319 And as, Your honors have discussed at some length,

03:22 - 49.957 that opinion was, had a lot of texture to discuss cancer.

03:22 - 52.960 Can I just interrupt to clarify, were are you saying

03:22 - 57.398 increase the risk that she would succumb to lymphoma or increase

03:22 - 00.701 the risk that she would succumb to the a sooner than she would have?

03:23 - 03.471 That thank you for that clarification.

03:23 - 05.173 The injury complained of was death.

03:23 - 09.310 So so the testimony was that she died.

03:23 - 10.278 Right.

03:23 - 14.448 But but there's is your are you proffering an expert to say she would not have died

03:23 - 17.785 if there hadn't been the negligence?

03:23 - 18.619 Absolutely.

03:23 - 22.190 I mean, so so I don't think that's what the doctor testified to.

03:23 - 26.894 So that's, that's, that's the second part of the missile felt conversation.

03:23 - 27.128 Right.

03:23 - 32.366 Because, doctor, Swiffer was asked, would she would she have lived?

03:23 - 35.369 And what he responds is, sort of

03:23 - 38.639 to, to to go back to actually what what he responses,

03:23 - 41.075 I can't I

03:23 - 43.911 he's not capable of predicting this altered future.

03:23 - 44.178 Right.

03:23 - 49.250 So he he testifies to that portion, that portion of his testimony,

03:23 - 52.920 he, he, he testifies that he could not have predicted the future.

03:23 - 55.923 But what he does testify and he prefaces that with,

03:23 - 59.493 I do know, is that she would have, had the chance to live longer.

03:23 - 00.895 Right. Exactly.

03:24 - 03.631 Which which seems to I mean, I'm just trying to get

03:24 - 06.167 get to the what your expert actually testified to.

03:24 - 09.170 I mean, it would be a very straightforward case

03:24 - 12.073 if there was a misdiagnosis.

03:24 - 16.477 And the misdiagnosis was they treated her for one cancer.

03:24 - 19.113 That was extremely,

03:24 - 21.916 aggressive versus another cancer

03:24 - 25.920 that had a 95% success rate if treated properly.

03:24 - 29.223 And she succumbed unnecessarily

03:24 - 31.325 to an aggressive treatment that if she would

03:24 - 33.728 have gotten the right treatment, she would have lived.

03:24 - 35.763 That's not this case.

03:24 - 38.232 And I know that that would be the stronger case.

03:24 - 43.571 But as Justice Mundy actually pointed out, that testimony about the percentages

03:24 - 47.508 really go to the question of what would have been the extent, how much,

03:24 - 49.677 how much longer would her life have been extended?

03:24 - 51.512 What are the damages? Right.

03:24 - 52.947 But do you have any expert to say that?

03:24 - 53.748 I mean, do you have any

03:24 - 56.851 I mean, I know we're not taking this as a damages kind of a case, but.

03:24 - 00.521 I understand I was completely

03:25 - 03.524 understanding the causation side before you start talking.

03:25 - 05.192 I'm sorry.

03:25 - 09.597 But is your client's is your theory of the case that she would have lived?

03:25 - 14.268 Or is your theory of the cases that she she had a chance of living longer?

03:25 - 19.073 Because the latter, I think is is probably pretty good under Hamel?

03:25 - 22.810 The former, you probably have a problem with the fact

03:25 - 26.580 that this is a very aggressive form of cancer, and your expert did not testify

03:25 - 28.516 to a reasonable degree of medical certainty

03:25 - 30.751 that she would have survived that particular cancer

03:25 - 32.353 if it was treated in time.

03:25 - 35.523 So the expert testified actually to both,

03:25 - 38.526 because that was those are the facts of the case.

03:25 - 42.063 So there was a portion of the testimony

03:25 - 45.666 that discussed the idea that if treated with appropriate lymphoma,

03:25 - 49.337 lymphoma, medication,

03:25 - 54.275 8 to 20% of the folks with her stage of lymphoma

03:25 - 58.145 that get treated with, general lymphoma

03:25 - 01.148 therapy and, and, in that sense,

03:26 - 05.553 with the testimony trial was, is that there is not a specific lymphoma

03:26 - 07.788 treatment for this particular lymphoma,

03:26 - 11.058 but that doctors treat non-Hodgkin's lymphoma.

03:26 - 13.361 It's like this one in very similar ways.

03:26 - 16.097 And therefore there are a lot of options for treatment.

03:26 - 19.100 And of course, Doctor Soi for goes through those particular treatments.

03:26 - 22.403 And he could not testify to a reasonable degree of medical certainty

03:26 - 25.406 that they would have been successful.

03:26 - 29.410 What he said was that he couldn't that that what we do know

03:26 - 32.980 and the law does in in judge zircons

03:26 - 36.584 words in Hamel the law does not require knowing the unknowable.

03:26 - 38.786 So I think that that's very apt here. Right.

03:26 - 42.356 Because what he was asked on cross-examination to testify to

03:26 - 45.860 was what would have happened in this hypothetical future.

03:26 - 50.164 So what he testified to a reasonable degree

03:26 - 53.401 of medical certainty was that, the,

03:26 - 57.304 the delay in the diagnosis caused her injury.

03:26 - 00.941 Then he was asked further, how much longer would she have looked?

03:27 - 02.643 And to that point, he says

03:27 - 07.047 effectively, would you say that only God could know?

03:27 - 10.684 So the the two portions of his testimony

03:27 - 15.389 meet exactly what missile felt actually said, because you might recall

03:27 - 19.660 that in both Hamel and, missile felt a lot of these,

03:27 - 23.664 the arguments that were being made was, to,

03:27 - 28.269 for Pennsylvania law to require a certainty about survival.

03:27 - 31.572 In fact, that was the basis on which,

03:27 - 33.674 the Hamel, the,

03:27 - 36.544 trial court dismissed the case in the first place,

03:27 - 41.649 the Hamel case in the first place, because Doctor Wecht testified, that.

03:27 - 45.953 Yes, if he if the patient had been given the appropriate medications

03:27 - 49.056 for his heart attack, he would have had, you know,

03:27 - 52.693 that that the failure to give the medication increased his risk.

03:27 - 55.729 And when further asked,

03:27 - 58.499 so that was his causation opinion, and he gave that to medical,

03:27 - 00.367 to a reasonable degree of medical certainty.

03:28 - 03.971 And when further asked, what is the percentage that you believe in

03:28 - 05.072 your experience for him?

03:28 - 07.942 How long

03:28 - 09.243 would he have survived?

03:28 - 12.112 He says in about 75% of cases,

03:28 - 15.115 this works, but some percentage.

03:28 - 17.551 And he says approximately.

03:28 - 21.689 And what the Superior Court said in the initial hammer, one opinion

03:28 - 25.326 was that doctor works testimony was sufficient to meet the causation,

03:28 - 29.263 to meet the, requirement to submit the, cause

03:28 - 32.266 of his causation opinion for the jury's deliberation.

03:28 - 37.137 And the second part of it was this discussion of,

03:28 - 41.909 do we require 100%, certainty that this would have been

03:28 - 46.447 a successful treatment and therefore he would have survived 100%?

03:28 - 48.916 And the Superior Court responded, no.

03:28 - 53.120 And then two cases later, the Supreme Court in Hamel

03:28 - 56.123 three agreed without analysis.

03:28 - 59.527 So, in that,

03:29 - 03.197 so simply so, so going back

03:29 - 06.200 to the idea that,

03:29 - 10.771 the the argument is proposed,

03:29 - 14.708 the argument about percentages are being proposed

03:29 - 17.878 as undermining causation,

03:29 - 19.980 but they should be recognized for what they truly are.

03:29 - 22.683 They are they are they are,

03:29 - 25.953 measures of damages, just like Justice Mundy talked about.

03:29 - 27.121 Because,

03:29 - 32.293 and let me give you, sort of a foil to that,

03:29 - 35.329 to that, to this example of medical

03:29 - 38.332 causation.

03:29 - 40.301 Let's say that,

03:29 - 43.671 there is a very clear intersection, a collision between a red car

03:29 - 48.576 and a blue car and the the, plaintiff is severely injured.

03:29 - 53.314 And, there is testimony at trial about the,

03:29 - 57.084 standard tables of life expectancy.

03:29 - 00.921 And this also goes back to the idea of outliving your life expectancy.

03:30 - 04.992 In those cases, there is not there are going to potentially be experts

03:30 - 07.995 who testify that this person might have lived longer or less time.

03:30 - 11.332 But all of that testimony gets placed

03:30 - 14.335 into the lane of damages,

03:30 - 16.470 and even thinking about

03:30 - 19.473 just stepping back and looking at that doesn't actually,

03:30 - 22.443 that doesn't actually undermine

03:30 - 26.080 any of the actual causation testimony

03:30 - 30.084 of what happened in terms of red car, blue car.

03:30 - 34.588 So even so, in these cases where we have,

03:30 - 39.860 a preexisting cancer and we have a doctor treating a cancer.

03:30 - 40.928 Hamel.

03:30 - 46.467 This is how they all recognize that this is these are concurrent causes

03:30 - 50.471 that end up, resulting in one injury.

03:30 - 55.109 And perhaps one might have led to the injury on its own.

03:30 - 58.379 But in these types of cases where the,

03:30 - 04.184 physician has has the ability to treat, the patient with appropriate

03:31 - 07.921 treatment, the negligence is capable of increasing the risk.

03:31 - 12.192 And the negligence is also, gives rise to an injury.

03:31 - 16.864 And the extent of that injury is simply a measure of damages.

03:31 - 19.466 How long they may or may not have lived.

03:31 - 29.209 And, In that respect,

03:31 - 33.080 the testimony in this case was entirely appropriate.

03:31 - 35.582 You don't, but you do.

03:31 - 38.552 And I'll just prod one point further.

03:31 - 39.319 Make sure I understand.

03:31 - 44.825 Your point is, to the extent the cancer that she had

03:31 - 48.629 was not survivable, period.

03:31 - 53.434 General, as a matter of general medical knowledge, that, in your view,

03:31 - 56.770 would be a battle of the experts kind of thing

03:31 - 00.541 they would have where your expert on causation

03:32 - 03.811 said, I have no idea or I can't, I don't know what would happen.

03:32 - 06.513 They could bring in an expert to say,

03:32 - 09.750 in my expert opinion, based on my years as an ecologist

03:32 - 13.454 in treating patients with this disease, there is no effective treatment.

03:32 - 15.522 Death is certain.

03:32 - 18.258 How would that have impacted your case?

03:32 - 21.261 Well, if you don't have expert support, a trial,

03:32 - 24.131 then you probably would not actually get into a courtroom.

03:32 - 26.834 The your

03:32 - 30.437 hypothetical was saying you don't you don't in your view of Hamel.

03:32 - 31.438 Right?

03:32 - 35.576 You don't have to you don't have to establish

03:32 - 38.579 a chance that she would survive at all.

03:32 - 42.483 It's sort of presumed in the Hamel,

03:32 - 46.253 construct,

03:32 - 49.323 you would then have the defendant,

03:32 - 54.061 if they want to, to cut you off, come forward with an expert

03:32 - 57.898 that says no death of a certain reasonable and will go to a jury.

03:32 - 01.435 Obviously, a jury would have to decide whether to find the expert credible

03:33 - 02.069 or what have you.

03:33 - 04.037 But you think that's enough to get to a jury?

03:33 - 05.672 Let the jury decide.

03:33 - 07.274 I believe the defense, if they want to.

03:33 - 08.509 I believe the defense expert.

03:33 - 10.944 This cancer was not survivable.

03:33 - 13.080 Death was going to happen.

03:33 - 15.549 We're now only looking at whether the negligence,

03:33 - 17.417 robbed her of the

03:33 - 20.420 chance of more days with her family.

03:33 - 23.624 So, so

03:33 - 27.728 let me again sort of respond to your question this way.

03:33 - 32.199 There is Hamel requires

03:33 - 35.502 expert testimony that,

03:33 - 39.072 a doctor offers,

03:33 - 42.509 to a reasonable degree of medical certainty that the negligence

03:33 - 47.481 increase the risk of the injury, and then the injury actually occurred.

03:33 - 51.251 And the expert is obliged to connect the dots

03:33 - 56.456 from the very beginning of the negligence to the, ultimate injury.

03:33 - 01.261 The question of how long one actually would have.

03:34 - 04.965 So, so the expert in the course of that explanation,

03:34 - 09.436 just as in this case, and I and I

03:34 - 12.940 and I'm going to speak to this case, in the sense

03:34 - 16.810 that Doctor Stauffer actually did testify that there was,

03:34 - 21.081 a treatment for, Miss Smith's cancer.

03:34 - 22.449 And in fact,

03:34 - 26.086 the even at the time, at the delayed time

03:34 - 29.189 that she actually took this treatment, she,

03:34 - 33.427 she may not have responded to the front line epoc, treatment,

03:34 - 37.631 but she did respond and was almost in complete remission,

03:34 - 42.603 using the ice salvage, treatment and that treatment allowed her

03:34 - 46.740 to go a step further and actually have the bone marrow transplant

03:34 - 50.110 and the bone marrow transplant, and and let me also,

03:34 - 54.948 explain that the percentages of 8 to 20% really,

03:34 - 58.952 discuss the survival at five years with chemotherapy.

03:34 - 01.955 Only when doctor Schaefer also explained was

03:35 - 07.394 that the chemotherapy is the pathway, through which you get to a complete

03:35 - 11.899 or a partial remission and that increase and that, permits the bone

03:35 - 16.403 marrow transplant that then actually can provide even a complete cure.