Hunter Brown vs Real Water, August 21, 2024

I don't mind telling everyone this I'm not really that concerned about subsequent rulings I'm concerned about my [Laughter] rulings okay next up page 10 of the calendar Hunter Brown versus Affinity lifestyles incra oh yeah we got a lot to talk all right good morning let's go ahead and set for the appearances for the record morning your honor Eric Pepperman and Teddy Parker for planus good morning Eric Freeman and Jula do for real water and infinity lifestyles.com morning and honor Jim Calin for et1 DBA terrible hert good morning your honor Colt dodil Council for Nevada beverage bar 9000 good morning your honor Jim Neil for unw and Whole Foods Lou Brandon presid also for unw and Whole Foods your honor Jo do on of real water my colleague Matthew cman is observing I think his praw is on for today all right does that cover all appearances that's for checkins let's go ahead ahead and deal with the uh prohawk issue thank you honor do on beh of real water I don't believe there's SP in opposition Mr Kaufman assisted in Prior three trials requesting permission to have him assistant strong right and there's no objections right Mr Petman no opposition all right we'll go ahead and Grant that thank you submit an order okay and before we get to H the uh pending motion uh I'm looking at uh where we're at and U it's my it's my understanding the motion in Lemony the spa of motion deadline is that August 28th that right uh yes H I believe we just submitted a stipulation to bump it a couple couple days to the 28 all right that's okay now here's my next question we did we we do our calculation and I guess um 14 days after that would be I guess 911 2024 and with the replies do five days after that what does that put us as far as in limiting motions because the way I see it we'd have probably less than two weeks before a trial right and here's my next question are we gonna reargue all those motions that I heard before judge you are on top of things you are we were just talking about that outside the courtroom well and here's my point you know how Mr Parker you know I think down the road you do right I think down the and so this is a case management issue that I have to deal with and I recognize it you know and I have a lot of questions about where we're at but uh what do we do with this issue because I'm sitting here and for example um if the if some of the prior in limity issues are fact exactly the same why would I roll different y h i I agree uh we were talking about this outside just before we walked into the courtroom uh we were also planning I think Mr came up with this idea potentially informing the court of the additional rulings and the subsequent cases and perhaps as we speak to our to among ourselves but I'll tell you this I don't mind telling everyone this I'm not really that concerned about subsequent rulings I'm concerned about my [Laughter] rulings you see where I'm going because for example if I granted a elimin motion and it's exactly the same issue in this case why would we why would I I mean I understand we have to sometimes make a record and potentially we could incorporate if everyone agrees the argument from the prior hearing on that specific issue but here's my point and this is what's a little bit different now uh number one is this this will be what number Trion number four or five four okay this would be Trion number four that's what I thought and um as far as U and I realize I do understand this and this is this is kind of kind of my um observation I haven't had a chance to dig deep in it but it appears to me that this case might involve slightly different medical causation issues there's issues regarding pre-existing conditions and those types of things so I understand that so I'm not really dealing with those issues but some of the really factually it's all the same you know and as a result judge uh you know what I rule the same way as a matter of a lot would hope so because we spend a lot of time on some of those issues right now I realize there might be issues regarding medical CA ation pre-existing condition and things like that and we might have to figure that out and ultimately maybe that goes to the jury I get that you know but um where do we go from here from an efficiency perspective because I want to make sure we can start trial on time well when we have the uh required meet and confer on the Motions in Li honor we can determine at that point the ones that we intend to refile and to the extent that they've been filed in the Gallagher case we can indicate the Court's decision those and or not we willing to Simply accept those decisions in this case without oral argument um put those in front of the court and the ones that are new and those are the ones I Wasing to earlier there may have been some new ones that we hire we uh brought before the judge kishner and judge Hardy and we could res we could submit them in this case and we could also because I want to hear those if the company knew that I haven't had a chance to uh specific review and rule on of course I want to hear it I'm not going to rely upon what another judge did I'll just be with you your honor could I ask in terms of the Court's availability for hearings on these motions if uh you have an idea of what your trial schedule's going to look like around that time well from what I gather and I'm just looking at this is this correct we couldn't start hearing these until the 23rd is the 22nds a Sunday that's right and tomorrow's our pre and tomorrow's our pre-trial calendar call you know you got a firm trial setting so you're number one uh it's this is this is this rough uh estimate but I think we couldn't start hearing these until from what I gather the 23rd then I'm going out of town the 26 and 27th then we go the 30th the week of the 30th up until the 4th and then we start TR the next week we don't know we have left we won't know if we have a trial that last week until tomorrow oh yeah is there because there's another matter on calendar is that up so maybe we can so your honor maybe we could hear have the Motions heard the 23rd through the 25th I don't know if we need all three days but that would be sufficient I think given how much time we spent in the most recent case we won't have many new motions I don't believe Mr o thank you um I happen to be on the Court's calendar call for tomorrow I've spoken to to the coun you have two matters right yeah and um they have a calendar in conflict and so they're going to ask for that trial to go the week of the 16th to the 20th and I have no objection to that I just want to give the court a preview obviously they're not here open any canel worms I mean if everyone's agreeing you know Mr O do I don't have any problem with that appreciate that you're honor um what Mr cman and Mr Parker propos is completely reasonable what we would what we would anticipate may happen is we may have uh typical motions of limony that the court needs to rule on just like always we may have a group of motions on limony where we would incorporate arguments previously made if that's acceptable to the court and submit those either on the record or based on the Court's prior ruling that's the one I'm a little bit fuzzy on and there may be motions eliminated people still want to brief and have the Court rule even if the Court's ruled already I'm trying to anticipate what everybody not necessarily what real water may do I I I understand I respect that sir that would be my thought we work a lot of this out we confer and at least give the court a list of you know motions elimin that the courts either ruled on completely and we agree to incorporate that just so the record's clear for any pellet issues and then there may be motion that people so want to brief that sounds fine we like like Mr oo said we can handle a lot of this at the Mee first so Mr cavon what do you want I agree your honor to the meet and confer as a necessary threshold matter to begin intelligently presenting time periods and such to you just point out my client wasn't in the first Gallagher case as no retailers were um anyway uh we'll know a lot more after our meeting for next Monday okay so you started out did you s not in Gallagher they were never in G terrible terrible hers wasn't I'm saying retailers were you said no retailers were originally part of that case retailers were in G who was that I said they were in the case they they settled before Trum I'm not aware who they were UNF what unw is a distributor okay but was not a defendant in Gallagher to my knowledge okay but I don't think it really matters I mean and here's my point you know me just help him Mr Haley worked at Whole Foods bought his reala water from Whole Foods in Gall well aware but Whole Foods was not a defendant no retail was a defendant and the gallager matter right right well it doesn't gentlemen I'm not really I mean yeah we Tedd you can you can talk about that at the meeting of yeah sounds like a good idea you know but but I but what I'm trying to do is really focus on efficiency right now and I think we have to be concerned because we don't have a lot of time but yet we have a trial coming rapidly approaching for all practical purposes the trial is tomorrow y That's great John you know and and I realize this is this will be the fourth trial but and uh a lot of the facts will be the same but there'll be sight nuances and it's stress trying to case I get that and uh so how what do we so today is the August 21st uh we should probably have a status check as to how this was resolved at the me and convert because I do need to have planning I do we have to and the reason why I want to have a status check I want to force you to make some decisions I do think you know the availability for hearings will factor in in the meet and confer because we can certainly try our best to come to an agreement our view is if you previously ruled on the exact issue there's no point of of rearguing it uh but if and especially because this is important to point out M Mr Pepperman uh it's not like we didn't really and truly spend a lot of time vetting those issues five weeks five weeks you know and uh and I think everyone's G to you did your but notice I get yeah I get that but uh I understand but but I agree in principle everything Mr just s and it could also be that yeah but but but here is my point at the end of the day does it really matter when it comes to the restatement of towards 42a and the consumer expectation test is set forth by our Nevada spring court right because the retailer would be in the distribution chain right that well that we are I agree you well and here's my point I just remember the last they were in the distribution chain yeah that's true yeah and and and because I think we did have some argument uh uh by members of the distribution chain last time and said well what do we do wrong I said well you were in the distribution chain the law is the law right and you know and just as important remember and I think this is often overlooked from I won't say often overlooked because lawyers that you know practice these a lot as far as product liability they're very familiar with this but at the end of the day when it comes to making that determination I'm focusing on the product not the conduct of the parties right now that can have an impact potentially from a punitive damage perspective I get that but we're talking about a defective product un reasonably dangerous on the restatement of torch 42a right the thrust is on the product not necessarily would you know you can have all the best intentions in the world and if that product's defective it's defective and there's liability that's kind of how that works so I just don't want I want to make sure we don't get we don't sidestep with the law mandates and I know we won't so when is the meeting when is the meeting convert going to be again Monday Monday afternoon got how about a status check next Thursday you got too quick no we don't we don't have to not for this one I just want to give more time to you know after a few days after that so that be 29th you're on yeah the 29th the real water and plps have a status check with judge Hardy at 9 o' if we could make it 9:30 or later it's not going to be a very lengthy satday at 10 o' how busy is that calendar I didn't check it don't we can do 10 o'cl that' be great thank you yeah and it's GNA be a status check regarding status pre-trial motions and whether there's any agreement in that regard very good thank you yeah because we have to you know we have to right now we have to start thinking about you know trial management issues we do um we at as far as jury question where we at as far as a jur questionnaire is concerned I will miss switzler is handing that handling that for my office yeah there's no disputes on the jury question there everybody responded to miss wher's last email so I think we're we're moving forward yeah they confirm the timing on bringing the jurors in and and when we get the questionnaires I'm not sure if the jury questionnaires have been delivered yet to jury services but uh they will be prior to them bringing in the first patch I think they they sent out summons I I don't have a a command of the exact dates but I know they're going to send out the summons to bring them in to fill out the questionnaires later uh next month yeah I'm looking here we have uh this is a correspondence from the Switzerland uh to land uh we will have 610 copies of the jury questioner delivered to Department 16 on or before 9:13 and the final list of stipulated excusals to the court no later than 10:3 all right those are the dates yes or so I'm kind of anticipating at some point they'll bring him in and I'm going to do just like I did in the prior case you can come down and watch if you want to but I swear them all in you know I say a few things not much different than what I do in Bard ir and I explain to them the importance of filling out the question truthfully and if they have hardships don't talk to the staff they better place them or discuss them in detail in the questionnaire because I'm going to read it I'm G to make the ultimate decision as far as that's concerned I let them know that you know and just as important too the reason why swear them in because this actually is part of the vardar process it really and truly is right and they should be sworn in before they fill that out and that's what I do you know I spend maybe about five minutes or so talking to them uh but I think that's very important because hopefully that helps with uh uh the respones being more meaningful you know and that's what you want right absolutely yeah we appreciate thank you so is that have we taken care of all the housekeeping issues your honor I have one question Colt dodil bar 9000 Council for Nevada beverage with pre-trial motions due the 28th and the status check on the 29th do you want any special designations uh on the Motions filed I think you did that in the Gallagher I wasn't a party to that but I think there was something you wanted in the caption just to uh flag it for your for your Chambers I mean if if it if we did that and there was no objection and it appeared to work I have no problem with that your honor I believe what he's referring to is instead of filing it and saying hearing requested in the caption we put per courts instructions hearing set on X date but we had dat at that time so um in terms of filing the Motions if if we don't have dates I don't know if there's really any anything we can do on that yeah and you have to have dates and what can happen and this is what we don't want to happen we don't want to uh have you file your in liim motions and sometimes what happens you get hearing dates after trial starts right exactly I understand s and so I guess maybe we should work with this as the rolling date for all hearings um September 23rd and sir I'm glad you brought that up and that makes it easier you can say September 23rd for court order sounds good at 9:30 and that would be the date that's not gonna we're not going to hear them of course all on that date but that's that's the date that would be appropriate and that'll alleviate confus usion in the clerk's office thank you your honor thank you sir for pointing that out okay is there any other was there anything on calendar tomorrow here I don't believe so but I think we have three summer judgment motions on calendar and this matter scar me a little bit I don't let me take a look sir um only two from from what I gather the only future matter we have set right now would be September 5th 2024 status check proof of funds transferred to uh Trevor Abel after 18th birthday is that pursuant to some structure or something like that or I believe that was a minor compromise minor compromise okay I got you yeah and that's the same day as the evidentiary here in starting so there's nothing set into then sir thank you appreciate thank you all right you're welcome okay is there any other housekeeping matters we need to address before we get to the motion doesn't appear to do yeah I think that was very very fruitful get St then okay and so let's go ahead and move on to the Hunter Brown versus Affinity Lifestyles uh plist motion for a summary judgment on the doctrine of issue preclusion all right we'll hand it to the plaintiff again good morning your honor Teddy Parker on behalf of the plaintiffs in this matter we brought what I believe to be a fairly straightforward motion uh pursuing to the festar capital case4 Nevada 1048 208 your honor to put things into context chronologically your honor we had the first trial in the real water cases in this court before your honor in September of 2023 with a judgment being decided by the jury in October 2023 the second case was the H wartson case before judge kishner that case started in January I believe January 16th with a a decision being rendered by a jury in February 20124 then the third case was in front of Judge Hardy and that case began in May of this year with the Judgment being provided by a jury in June of this year each of the three cases resulted in significant compensatory Awards and all three also resulted in uh significant punitive damages Awards you you our motion like I said before is fairly straightforward we cited to the cases uh dealing with products liability from the 1966 Shon Coca-Cola case which is 82 Nevada 439 the 1994 Allison versus MC case 110 Nevada 762 then the a more recent 2017 case which is the Ford Motor Company Treo case 133 Nevada 520 which certainly focuses on a consumer expectation test that the court was referring to previously y honor we believe that based upon these prior decisions jury decisions that each of the four factors under the five star Capital have been met additionally we believe that the uh concessions made by real water in these cases have also also support uh the use of claim preclusion as theyve all been necessarily uh and actually litigated the issues are identical the rulings have been on the merits and real water has been a party defendant in each of the three prior cases uh real water will argue that judge kishner denied a similar request in front of her and the reason why judge kishner denied it originally is because we didn't have a 54b certification in the C in this case in the G CES in fact judge Hardy uh ruled in our favor on this very same motion as to Milwaukee in the most recent Ren case in 2024 you so I don't believe that there's any true factual or legal support for the for real Waters opposition now one thing that was mentioned both in our brief as well as in the opposition from real water is a citation to the record before judge Ry I wanted to bring that document forward since uh one in terms of our motion we cited the verbatim language but we didn't give the court the page before a page after and in the opposition they didn't get the a couple Pages before and a couple of pages after so I brought copies for everyone I get a v uh yes you can you like app got and you before I get to this document you may remember we had this issue come up for your honor in the Galler case I created a timeline as part of my opening and the timeline provided with dates significant dates including when the FDA uh called for the recall the testing and the determination Hydro Zine the filing of the complaint and eventually when real water conceded and we were using that to combat real wat's claim to the jury trying to endear themselves to the jury I believe that we conceded a long time ago we didn't put these plaintiffs through a lot well our timeline in fact informed the jury that after 70 plus depositions uh 26 experts months and months worth of work actually years worth of work they finally conceded and so real water made the argument to the court that we shouldn't be able to use those dates and the court ultimately said no you should he should be able to use it to perhaps refute that real water did this of its own you know voluntarily sooner than it in fact did and I will tell you each of the other judges judges agreed with this spts position when it came to this motion or this this issue so what I've given the court now is Judge Hardy's was uh judge Hardy's uh court and that discussion involving the same issue and I gave you the first three pages y just so you could see that first is the trans transcript but the second page says the appearances you can see that Matthew h Kaufman Joel adul and Eric Freeman were there on day four the trial and then the third page tells you when the openings were given uh by the parties defendant real Waters opening began at page 106 but before I could use that slide that had those dates Mr objected to it that starts on page 64 Y and Mr says we didn't want to argue merits of that one so we'll address those for each one and then the bottom says the other one was a motion elimin the court denied again without prejudice it was about the timing that Mr Parker intends to offer in terms of you know what the outbreak occurred versus the trial when the trial began and that should probably refresh the Court's re recollection to the same arguments that came before your honor Gallagher Tri if you go to line six it says what is controversial though is the concession of liability that real water is defective and unreasonably dangerous going back to again the restatement second CHS it says they have that date in April 2024 we knowe that this the record before says Gallery here should say Gallagher would fa would place just said face which should be placed some time in September of 2023 there was a concession that real water is defective and unreasonably dangerous and we believe that concession if you will is binding on real water and there will try to go back and in any case including this case now you can tell the transcription is is messing these uh some of these words up but you get the you understand what Mr Abdul was saying to judge Hardy and you you can read through uh continue reading through uh what Mr Adu was saying I would highlight on the next page p 66 line 12 now if he if he would like to use 20 23 which is me responding to Mr adue which would be the month before we started the Gallagher trials that would be inappropriate because then I'd have to refer reference the Gallagher trial or that date and we know that's not true in terms of these plaintiffs the judge party just like this court did overruled real wat's objection to my use of the day your honor and then Mr duel says your honor this is line 21 the second to last issue is reorder is obviously conceded line ability and on the following page page 67 lines two and three liability is not an issue in this case the final page I've added dra is Page 110 again this is during real Waters uh opening Mr D says as I said this is line 14 through 23 there shouldn't be one drop of hydrogene hydrogene was found by the FDA while actually the car was in March of 2021 the FDA tested the water and they found the hydro in the concentrate in October of 2021 okay it shouldn't have been one drop it's in the concentrate so if it's in the concentrate that means it's in the five gallon jugs because they use these to make the five gallon jugs they put those big tanks they mix them around and those tanks again this is Mr Jewel oh those five gallon jugs get filled and then they go into the retail bottles as well so if you got a problem with the concentrate you've got a problem with all real water that's not disputed your honor our motion is asking for exact that exact determination by your honor and I will tell you your honor and you could summize this for yourself the opposition offered by real water does not include a single expert retained by real water saying that the real water products do not contain hydrogene which is a known Li to honor I believe you have everything you need uh in the form of this motion the admissions or concessions in the opposition and the lack of expert testimony offered by real water uh that this product was defective it included hydrogene which is a known liver toxin every test and you remember this from the last case there were 10 tests done of the product three of the concentrate seven of the bottled water and the retail bottles all found hydrogen there's been not a single test which that did not find hydrogen and finally your honor I believe that keii has resolved or settled with us and as a result you I don't believe the court should consider their opposition does the court have any questions j i I will I just want to hear what everyone's side is I have a lot of thoughts sounds good okay we're from the apposition good morning your honor good morning um plan try to really generalize and gloss over this to not address certain specific important facts in this thing they try to claim that hey the causes of action are the same real water has admitted in the past that its product was defective therefore issue preclusion applies and we can just jump straightforward to damages um we it's not disputed that in the was in the water and it shouldn't have been there that's been never been disputed um and what what is important regarding this motion for summary judgment to it's not really a motion for summary judgment I mean I wrote down summary judgment we did talk about experts but but um I mean I had a question regarding that because at the end of the day I'd have to look at it it was a summary judgment motion of course I would look at the moving parties evidence and um and then I look at the opposition and determine whether there's issues of fact and like and this isn't that motion um I had thoughts about it I don't know if it fits under five star right but go ahead well and what do we do because I mean I I was I did read the um the reply and starting on page eight of the reply um there's a transcript regarding I guess the opening statement and specific statements that were made and um there was a concession that you know real water made people sick and so on and so on so what do I do as far as this case is concerned well that's um that that's where I think five star comes in there's there's two important issues here plff has completely ignored the issue of causation they've only talked about real Waters concession and that they've said it multiple times and that you know it's it's it's been overruled okay these conversation all these EX that were just brought up today were attorney comments outside of the presence of the jury regarding further discussions of Prior motion and lemon hearings and it it was it's not testimony and it's not evidence here's the important factors is that causation is an issue and you can't just gloss over that and jump to damages the other one is the fact that liability wasn't wasn't causation an issue in the prior trial yes it was this this motion was denied in the prior trial well no here's my point and I think this is an important one because there's a distinction between liability and causation and what I mean by that is liability would be whether or not uh real water was a defective product un reasonably dangerous pursuant the we statement of torch 42a uh the next issue comes down to causation and we had uh significant discussion regarding causation in the prior trial and the thrust and focus of that would be based upon the medical evidence right and um uh for example uh and I see we have different plaintiffs here but if if real water was admitted to Be an Effective product that doesn't stand for the proposition that everyone that that suffered some alleged harm can can uh uh can automatically say look uh as a matter of law this liver problem I have was was as a result of the ingestion of real water that's not what would happen What would happen is I guess we look at the medical evidence and the jury has to make a determination on that issue potentially but my point is this there's I mean I've had many cases where for example lawyers have in a simple negligence case have stipulated the breach but they said look judge everything else is on table you know and it happens a lot well that's that's the problem here this may shorten your your your speech uh P I like where you're going on this and I mean but what the law is right no I agree the reason I put that out there is because of what you said earli there's going to be motions and Limon that may deal with some of the causation issues separate apart from the defect issue and the reason I it just came to mind your honor made a point in the last case that we have according to the court the causation arguments that were uh reef and the Motions elimin dealt with crom that was for Mr uh bski and Haley was uh tumeric right those were flashed out and the Motions limitting so in terms of the causation component of this motion yor I'm fine with deferring that until the Motions of liy are heard so that may make that easier for hum to free yeah and that was our biggest concern is that their entire tion just said hey they conceded to liability the product's defective so let's just jump and have the jury decide how much we're going to give them they was just completely glossed over the whole causation issue and that's where took exception because but here's my point it's never been I didn't the most expect you to not again yeah I know I didn't I didn't gloss over that I mean because is as far as um the product itself what position is real water going to take yeah I I don't I think at this point at trial 4 we're not going to come in and say hydrogene wasn't in the water it or if it was it should have been or I mean any anything different that's been said in these four or I guess three prior cases because I kind of looked at it differently is this is there an aole issue well again going back to I mean I don't know the five star well five star is a different issue right that's pla preclusion issue preclusion I understand five star but I'm talking about the stopple because in a general sense you can't take inconsistent positions in different courts right you can't especially under the facts of this case because these cases are Consolidated for the purpos of discovered right and here's my point because for example and um I remember this I respect m o do for doing this I understood his difficult position but nonetheless uh there were specific statements made during an opening statement right and so we're not going to relitigate that are we yeah yeah so we're all on the same page here here's the problem is it kind of all ties back to what they were trying to just Leap Frog causation and collateral stopples should not be based on stipulated facts I mean I I agree with all that we're we're going down a road that we don't necessarily need to go down because I understand the distinction between causation I understand the history of causation in state of Nevada going back to Perez versus Las Vegas Medical Center you know pru versus aain Brown versus more Cado I mean I get it you know Hallmark I mean I understand causation uh what was a case there's another Williams that was my case I mean I understand medical causation well you mentioned earlier today before we started the hearing about there's going to be issues of medical causation because there's a whole different group of PL of well the only reason I I brought that up I read the points and authorities it appeared to me that were slightly different uh issues based upon a pre-existing history of some of the individuals that were plain of in this case versus the prior case and you know and I'll tell you no no witness is going to come in and say something different about hydrogen being in the water then is going to be different from what the three prior cases or in any of the depositions or anything because I don't mind telling everyone this because uh when it comes to like for example independent alternative causation Theory and opinions as set forth in the Williams case I'm not going to overlook the assistance requirement as required under hallmar I'm not right assuming that's being raised and that's what I try to do and so there were issues regarding other supplements that were being taken and I looked at it through this lens I didn't meet the assistance requirement under Hallmark right and and from my perspective the the most difficult thing I have when it comes to these types of cases in most cases is making sure I understand what the facts are once I get the once I understand what the facts are I can in a general sense deal with the legal issues but I need to know what the facts are right because every case is is is factually different uh for example in this case and this is just my impression I don't know for sure but you'll flush this out for me U the pre-existing uh conditions of some of the plantiffs might be a little different I get that you know and it's my recollection in the prior case that went in the TR front of me didn't have any significant issues regarding pre-existing conditions this one we might you know drinking or whatever I I get it am I missing anything just because there are people that will look at this record after us yes I want to make sure the oh absolutely Mr O you know how I feel about that you make your record sir I just want to add to the record that Bren Jones deposition was taken in June of 2023 Brent Jones himself conceded there shouldn't be hydren in the water that excerpt is played in Galler trial anticipated it'll be played in this trial there is no dispute that Brent Jones not jool o do but Brent Jones admitted there shouldn't be hydr Zine in the water and so if somebody's looking at their pillar record and thinking this is a statement of council not the client this was a statement of the client we always honored that he told the truth and we always honored that in the Gallagher trial and tried to make sure that other people were telling the truth we had some some people that didn't but they weren't our clients and they weren't plaintiffs they were covers and uh we had a an interesting trial hopefully we won't have that here um in addition I know this court makes its own rulings Mr Parker has represented a bunch of things about the ren trial they're neither here nor there this court will make its own ruling we I think for the record can just agree to agree as to those representations if they come up here I know this court will take its own look at it and we'll argue with them and I try to do that because I don't mind saying this I read rulings from time to time with other respected judges even on the federal bench I don't always agree with right you know I don't and um for many reasons and sometimes the law doesn't support the ultimate determination and that's okay we can disagree as trial judges and one thing I Won't Give Up is my IAL Independence we give it up right you know and I think sometimes uh how a court exercises its discretion is overlooked even by the Supreme Court sometimes because it's not really necessarily uh which ultimate decision is it's did you go through the process did you for example good cause did you rely upon all the factors and did you discuss some form of analysis you know just be and if you go through that you're exercising your discretion of appropriately right and and they might disagree with the ultimate outcome but you know we can quibble on that but I understand and that's why I do what I do Mr O I don't mind saying it that you know because at the end of the day if this case goes up on appeal no other judge's name will be on that appeal but my own right and one of the things I've always tried to do I don't mind saying it it's like for example in the Williams case that was a highly contested litigation case I went the other way from the other trial judge in that case as I remember I I I made a determination that the the qualification uh requirement under Hallmark wasn't bad as far as a nurse giving an opinion on uh medical causation Supreme Court agreed with me the other trial judge went the other way on that right so I'm always gonna I'm always gonna exercise my Independence appreciate that thank you I just wanted to make the record absolutely clear you know we all have lived through three trials and we be throw forth but the record needs to show some of this evidence and just to make sure the record's clear and I think many times you have to understand it this I know you know this Mr O and what you're saying is look that was the status of the evidence at the time and you can't really you can't tell an untruth to the jury right you can't and U and if you if you do that can be a problem absolutely that evidence will come in in this case yes if I don't play Brent Jones's testimony I'm sure we're playing want to get out in front of it and here and here's another and um the timing issue I always tell you why it Ru the way it did because I mean I I remember this I had a young lawyer that came in front of me and um there was a question regarding uh the timing of the admission of liability and um he said judge you have to understand this we found our answer we had made it liability right and uh I told him I said sir you I wish more people would be that gutsy and do that and I said of course you can argue we've always accepted responsibility from the day he filed the answer until trial for this event unfortunate event but we're going to contest causation right and that's kind of how that goes but I understand that each case is different but that's why I let the timing come in because one thing we don't want to do is we just don't want to mislead the fact we don't want to mislead the jury that's kind of how I look at that but uh where do we go from here so y I think we have concession and an understanding and uh a deferral so let me give you my my impressions of where we are um first let me address what Mr Odo said if I could johon I do believe that Mr Odo gave those representations in his opening the first uh the first one that I point out was on page 110 during the uh during the ren trial but Mr ul's opening was based upon the evidence and I'm not saying that Mr du came in there and admitted liability and causation in those cases because that's how he felt that was his opinion his own expert gave those opinions his own his own client gave that evidence and the reason why that's why I wanted to clarify that because whatever I mean typically not all the time but most lawyers when they make statements in front of a jury it's based upon what the status of the evidence is and the other thing that's pointed out that the court made real clear and I wanted to to certainly U reinforce this Blain Jones Brett Jones they gave testimony by deposition Y and those depositions have been played in these in various cases that we've tried and it it's a part of the coordinated Discovery efforts in this case so they've applied in each of the trials and I don't see how that's going to change because the depositions haven't been ret retaken and they've not come to court to change their positions so again I believe that supports the fact that this is a defective product one that does not meet the consumer expectation test no one would expect to have a liver toxin in a bottle of bottle of water so I think that Mr Freeman on behalf of of uh real water has conceded that the product was defective it was was defective when it was made was defective when it was distributed and it was defective when it was sold and consumed the causation issue is one that we will delve deeper into on the motion of limy practice I think that's the deferral uh Y and I I think you will deal with that causation issue at the time and to the extent that the real water defendants or any other defendant can prove uh in accordance with Hallmark that these allegations of Prior drinking or prior or some you know prior condition caus or contributed to their uh their acute liver failures or their liver injuries then we'll see at the time of the hearings on the Motions in Limon but I do ask that the court apply issue preclusion as to the defective nature of this product based upon the cases we've cited and the evidence that's been produced now in three trials and I think that's where we are here your honor we don't see the the issue as aeral we would say if Mr Parker needs an order to be granted at part obviously well here's here's an issue and I mean I kind of look at it from this perspective um is this is this really and truly a five-star Capital issue right think it is he didn't offer evidence opposite the evidence is the evidence and this isn't this more akin to an aole issue potentially I don't even know if it's aole because we haven't taken an inconsistent position well yeah that's I mean if you took I got understand what you're saying yeah right I mean and here's my point if hypothetically you took an in inconsistent position and stepped back from this and made another argument or something like that then potentially that might arise to an aole that seems like the bucket it would come under to me if we did that I don't anticipate that happening what do we do Mr Parker with that because it appears to me Mr Odo is not going to do that and and and here's my point I don't mind telling everyone this I don't I mean one thing I try not to do I don't want to have error no no I right I don't want I mean I don't want to have error I don't I'll just tell you that because that's kind of how I look at cases because I don't want these cases I want to try one time and and let the Supreme Court hopefully affirm me that's all I want so you honor I I call it a granting of the motion as as to the effective nature of the real water product okay but but but remember this and I made a little note here with a question mark summary judgment so we phrase it as summary judgment because we believe it disposes of that issue for this trial there won't be any argument of the defective nature of the product that's why we phras it but we basic B it on five star because it's issue preclusion that issue will not come before this jury whether or not it's effective product I believe Mr Freeman has conceded that that is not a they're not going to take the opposite position that the product was not defective so if that's the case I believe the court can grant or uh sign an order indicating that this issue would that come under as far as procedurally we don't see issue but also I don't think it's quite conceited I think the testimony and evidence in the past three trials and all the discovery is ConEd that okay all right I understand you're and make some bation maybe maybe when is it when is it the uh dispositive motion deadline again 28th extended too right the it was 26 I think we moved it to 28 yeah because this is what I don't want to have I don't want to have happened where potentially I make a determination it's not fully vetted and uh and we have a new trial based upon an erroneous decision I make in order to cut Corners because I'm wondering if I mean Mr Park you can file a motion for partial sumary judgment on defective product and if they don't have any evidence to the contrary I think this motion does that in part because as you can see in the legal analysis in the motion let me yeah take a look we bring this under 56 as well okay so I think we're covered there and this is how we did it in the other cases J we did it both under rule 56 and under five St we thought we covered both bases we also like I said before in addition to the rule 56 analysis we provided we identified the Allison case the Shon case and the Ford Motor Company case so we covered that so under rule 56 the court Grant a motion for Ser judgement add the defect was Major the product and given exactly what Mr Freeman just said and I'm not attributing this to Mr Freeman's opinion this is what the the status of the evidence is in this case they don't have an expert who's going to say to the contrary and their prior expert Mr Gold Smith uh admitted that the product had hydrogene in it and was effective so I don't think there's an issue here and I think the court can grant the motion under summary judgment again we analyze it under rule 56 that's what our motion says at page uh page six starting at line 20 and again your honor we indicate on page uh five of the reply a rule 56 analysis so we can you can grant that motion under summary judgment again it's only on the issue as the defective nature of the water product and if Mr Joel if I understood Mr Joel correctly Mr odul correctly he would ask that the motion be denied as to the causation element as opposed to a def well I think there's two two reasons number one of course I think they push back on causation in general and the opposition but I I think secondly with Mr and I listen Mr O saying look uh we don't think the proper basis would be uh a claims preclusion issue would maybe be something else yeah I heard that right that's right I heard that part joh honor and like I said the court can make its own decision the court will make its own decision in terms of the causation be it denied or deferred understood but we did analyze this under rule 56 I think the court certainly can grant this under the Safeway uh case there is no competing evidence we have a concession uh on behalf of real water based on the lack of uh expert testimony or opinions to contraries and we have in addition to that Mr BR Jones Mr bla Jones T the President and Vice President by your honor for the record um I can add a in uh n there is Nevada Supreme Court president it's leforge V State University and Community College system of Nevada 16 Nevada 4155 2000 and it's at page 19 quote issue preclusion is a proper basis for granting summary judgment so it is proper if issue conclusion applies to Grant summary judgment on that basis uh as laid out in the motion I do think issue preclusion applies But ultimately the question on summary judgment is is there a genuine dispute of fact that real water was defective and unreasonably dangerous under Rec statement SE uh section 402 and I think we're all in agreement here that no there is no genuine issue of material fact so I think the court can grant summary judgment under rule 56 on um liability for defective product not causation based on rule 56 and based on the doctrine of issue proc clusion um together independently here's my question though does are the facts of this case do they fall squarely under lifesty and and I can understand why potentially and that that's not a surprise whether I can grant serm judgment based upon uh issue conclusion uh I mean I get that but I'm looking at the status of the record that's what I'm looking at where are we at because um for example uh in this case we had uh uncontroverted facts that Mr odou pointed out is that a better way to say that's a better way to say it thank you yeah we had uncontroverted facts that Mr oo pointed out and he couldn't walk back from that because that was the evidence okay we have that um and then we can't Overlook let's go back and do a five-star analysis right and uh and that's kind of my point because I I the way look at this I don't mind saying it I think this is an issue that should be resolved before trial um we do have different parties I understand there was a privity issue raised uh but um yeah the privity argument I didn't address yor in an oral argument we addressed it in the reply I think it's a non-issue the privity that they're using is misplaced they're trying to use it as to the plaintiffs where the case law says you use it as the defendant the party it's being uh pursued against in this case real water was a party to all of the actions all the tries so I didn't waste waste support's time with that I think I saw to that argument uh yor without blay you know theay belaboring this any longer I I still believe given what Mr uh Pepperman just said and how the case law uh plays out in the fact that we both mentioned the festar analysis and Rule 56 that Court independently could make a decision on rule 56 basis given what's been what's the evidence in this case and how it's been described by rewards Council I think those concessions are are determinative under 56 y well and Rule 56 aside on your comments on is this issue preclusion that's another big part of our opposition here is that they don't meet um three of the four required factors for it to be issue I haven't overlooked that for example you say on page 17 collateral stopple uh should not be based upon stipulated facts for example exactly exactly I mean the only the only factor that meets is that it's real water is the same real water that was in the other case um there has never been they've always been stipulated facts there's never been a determination you'll recall in Gallagher um the only only question on the verdict form regarding real water was the amount of Damages there's never been a determination U on the merits actually litigated on not only causation but also liability and that was essentially major part of our opposition Mr Pepperman you get the last word sir your honor I would I respectfully disagree with Mr Freeman I mean it was actually litigated that's why he's referring to all the evidence of their own Witnesses admitting that hydrogene was in the water I I I get that but but here's my point and this is I think this is a valid shouldn't that be in the motion you see where I'm going on that I I don't mind wasting I don't want to waste anyone's time but it appears to me that this is the type of motion that you could have just F and been straight up look J they don't have any evidence in this case we say that joh we reply we say that in the I'm glad you said that joh we said that in the reply and we indicate in the reply that they don't have any evidence to the contrary in fact attached the excellent report saying okay agreeing with it so if we were to take issue conclusion out of the out of the out of discussion that's right and that's where you're going if we I was listening to Mr per if you take issue conclusion out of the equation and you only evaluate this on rule 56 will you have enough right now because there are no material issues genuine material material is genuine materials of fact that preclude the the granting of the motion because what you have on one side PL of saying it was defective if I can move over to the defense chair here defense saying it was defective that's it that ends the 56 analysis under Uh Wood versus Safeway your honor and that's what we're ask the court can do that separate and apart of the issue conclusion is uh claim and that's all we're asking for the court to do at this point okay but we did say that in the reply I kind of know what we're going to go but let's go ahead what's any Mr U or anyone we don't any further it just seems like granted in part on summary judgment makes the most sense um I would disagree with Mr Parker the legal mechanism to resolve the cation thing honestly we can deal with that take up the Court's time we can deal with that later oh yeah as far as cation concern here's my next question and this I just want I'm doing this from an appell record it was raised in reply is there a supplement you want to file in that regard or we we we also said it in the motion so it's in the motion and in reply let me where's it at in the motion and what I'm talking about not the collateral stopple or no you're talking about just the the uh rule 56 analysis exactly no I'm with you that's all I'm so we start with uh under on page six statement of of disputed facts it should be Undisputed facts the fact that the uh water was defective we indicate that it was coordinated for Discovery purposes from par the first line six through n we indicate of the uh results and we indicate transcripts where water where real water of course said that they weren't going to argue it but we also talk about if you go to lines 10 through and what page are you on Sir page seven okay I'm right there no is on no that's different this is on original motion no this is an the original motion oh I'm sorry I see what you're saying I'm sorry y I was looking at the their opposition so on page four of our motion let's make sure we start out by saying this is the cause of plain of injuries is real water's hydrogene lace product water product and real Waters failure to warn the public about his dangerous and defective product that's the start of it and it says real waterers failure to warn consumers was substantial factor in causing plain of inuries as a part of the outbreak across several years 18 2018 19 to 20 and then we said all of these facts have established through depositions and trial testimony and that's the true so even if you take away the uh concessions or admissions by Council based upon the evidence that's what we set this motion up to be about youron and so when we go to rule uh 56 on page six we indicate that this is we ask the court to do an analysis under rule 56 and then we go into we Pro that the defendant was either a manufacturer distributor or seller which is on page seven line two the product was defective which is we've already said is based upon the plaintiff's expert reports and the position of defendants they agreed the def existed when the product left the defendant's possession we all agreed with that and the product was used in a manner that was reasonably foreseeable we all agree with that as well and finally the effect was the legal cause of the Dage to the Plankton that's the only thing that's being disputed everything else has been admitted to so your honor we believe that you can find that it was a defective product under the shason case under the mer case and under the tro case and the last paragraph of this page not last paragraph but again I was following you what page again we're still on page seven okay that's when we get to Five Star but you don't have to apply five star to rule in that's what I'm saying I agree and I think Mr odul and I agree on the first part of that it could be granted as the defective condition of the product but he and I disagree whether or not it should be deferred to the motion limiting practice as to causation or just denied as to the causation and that's fine I can live with that denied without prejudice as a causation granted as an effective condition of the water problem I think we agree on that I think we do and you know and that's what I'll do I'll make it easy for thank you talk about the other issues yeah we talk about everything else your honor excuse me col dodil yes sir Council for Nevada beverage the motion was not filed against my client I did not file an opposition I just want to clarify that any any orders are not uh against Nevada beverage and that no rulings uh of the court today can be held against Nevada beverage and we can address uh at the lemon stage how those apply a trial you I I disagree with Mr dodel uh legally I think that as a as a client is a part of his chain of distribution that uh he's impacted by this decision he chose not to do an opposition ke who's also distributor uh opposed it but then resolved so I think if he had this concern he should F an opposition and argu argu was opposition but he did whatever effect it had all right let's hear from let's hear hear from you sir on that issue thank you your honor as Mr kavanau stated at the beginning of the hearing there were no uh retailers at at trial I don't believe there's been a verdict yet against the Distributors there is ample evidence um through Hallmark and other experts that will address and point the difference between the retail product distributed by Nevada beverage and the 5 gallon product that's been associated with the outbreak the courts and the juries have not had an opportunity to to make those decisions and I don't believe that any issue against uh real water including its admissions of liability which have not been not been briefed uh can be applied negatively against another defendant which has a right to defend the case that is a motion in limony that we filed in the uh Ren case but we we had gotten out of that case that's not been decided and I don't think any of those issues are before the court today regarding how it affects devada beverage and we'd ask that that be deferred to the motion in Lemony stage well I I think that's a slightly different issue here's my question uh number one the motion was filed I I think everyone understands uh specifically the law of product's liability uh as it pertains to a defective product and re be dangerous clearly the manufact facturers on the hook for that uh from a policy perspective so are the Distributors and retailers uh secondly um has there been any evidence offered by any of the distributors or retailers that that hydrogen wasn't in the water and it wasn't a defective product because here's my point unfortunately um and we do understand this under the consumer expectation test there's a policy reason in place in our Nevada spring Court decided uh to stick with the consumer expectation test and not follow the restatement third I mean I I get that but we're objecting but based upon what because at the end of the day if I permitted you to file a joiner right now do you have an expert we we have numerous experts your honor and they deposed some yesterday my concern talk no no no no no everybody can have an expert sir I understand this but do you have an expert that says that hydren is not um a dangerous product that is appropriate to have hydrogene and water and that the real water product wasn't a defective product unreasonably dangerous pursuant the restatement of torch 42a yes your honor uh Jim Calvin for et1 DBA terrible herbs we do in fact have such experts and I did not view also this motion as against the other defendants it wasn't styled as such and uh I've been here today on other matters as well as sitting in to observe here but I joined Mr dod's comments uh there were you know there was only one distributor in the entire of the case before you you're honor last year un FW there's several other distributors in his lawsuits and uh a number of retailers none of which were in the first case but back to your question there are experts that will uh contest that the amount of hydren in in real water well Council can laugh I'm sorry I'm laughing because you Chang the you changed your response and the judge picked up on it I picked up on it you said the amount of hydrogene you didn't say there was no hydrogene you went to the amount of I just thought that was comical I'm sorry Jim well aside from the comic relief from my good friend Teddy uh found in my comments there are experts uh that contest that if there had been 10 times the amount of hydro Zine found it it still would not have affected the health of these plaintiffs so you know I mean this these are motion elimin issues shouldn't be in any way applied broadly against parties that you know were not part to the prior cases and uh again I had no idea that's where plth now is looking to push the court uh to make a decision which would apply beyond what the stipulation issues were in the prior case with real water defendant this is going be quick edcr 2.20 tells us all of us Lans how motions are supposed to be handled how opposition is supposed to be handled and joiners Kei the distributor recognized that and F an opposition they chose not both Terribles and and the the other thing is because they both I'm sure aware of this when the same issue came up in front of Judge kishner not that the court is relegated to J kish's decision she applied this uh finding uh liability against Terribles in that case so certainly Mr uh Mr Kavanaugh is aware of that so y we know what 402a stands for restatement second to it section stands for and certainly they should recognize that if they chose not to do oppositions that's on them but the realities of the Court's decision is you know it is what it is and if they want to file some other motion and limity for whatever reason they can they can try but it doesn't change the law state of the ble so I I don't have anything else to offer Mr dodel or Mr Cav your honor and I think the court already made a decision all right and um this is what we'll do and I'm gonna I've made the decision based upon rule 56 as far as the impact let me think about that for a second okay I'll is you a minute order thank you I might add your honor I think the situation is very similar in in an effective sense to what happened in the gall case when your honor found unfortunately uh that uh one of the distributor the distributor defendant in that case unw had failed to produce data rather than a summary and your honor ultimately heard the issues and made a decision to uh I believe strike a toxicology expert in the underlying Gallagher case for unw uh and and the effects Downstream of that to the other even third party defendants at that time your honor was holding an a bance how that might how that alleged bad conduct that your court found might impact the other defendant and I think this in principle is very similar as well and your honor should consider how a stipulation by one defendant who's a party to a case could affect other defendants that were not in the gallager case at all and and that's the main point I had no idea this this this matter was aimed at at my client who was neither a party to the prior litigation or any of these five star factors that that Mr Freeman able already argued in this brief to the court but what we've done is to make sure everyone's clear we've deviated from the five star and we approached it rule 56 so the targets moved again no no no but I made the ruling after we made a ruling on rule 56 and right am I correct Mr that's the way we understood it yeah okay in your the last comment by Mr Kavanaugh he completed a discovery issue where MW had an issue with the actual Source documentation versus a summary with now a 56 uh decision I would say my good friend Teddy Parker's conflating a discovery decision and sanctions that judge kisher ruled in hunson with issues here related to rule 56 ruling so I think the conflating has already happened by Mr partner what do I do in this respect because one of the uh other Distributors right they F in opposition and no one and your clients didn't what do I do with that your honor I think we look at edcr 2.20 we look at the Four Corners of the moving papers nothing in plaintiff's motion for summary judgment is saying they're seeking a ruling against Nevada beverage Nevada beverage doesn't appear in that motion except uh in the caption and nothing puts us on notice that we had an obligation to to oppose that and they would be seeking essentially a a slam dunk against us when we weren't in any of the other cases so I would I would take a look at that first uh to see that we didn't we were not simply put on notice uh that that motion was directed at our at the Distributors here's my question in that regard because when it comes to the restatement of towards 402a uh for example if I granted summary judgment that the product was defective and that's as to the manufacturers how does that operate as a matter of law Downstream when it comes to the Distributors and also retails that's really the issue in your honor I agree and that's why ke objected to it terrible suffered of Fate based upon the restatement second section 402a and now to say that they were not aware of it I you know that is troubling for me for Council say they were not aware of the implications or the consequences of this motion and still believe that they're know they're very knowledgeable attorneys Mr Kavanaugh is a very good attorney I've known him for a long time Mr do not know known for long but he's shown himself to be a good attorney and for them to suggest to this court they weren't aware of the downstream effects of this decision goes against knowing products def liability cases and strict product liability that doesn't make any sense they're they're inconsistent positions for them to take uh so your honor I think he he did what it believe was necessary as a distributor and unfortunately Terribles as a retailer did not and the beverage chose not to as well and I think cour correct you can look at the motion and the reply they both analyze rule 56 and so even if they didn't believe it me the festar requirements they should have opposed it based on rule 56 chose your honor col odd bar 9000 Council for Nevada beverage in plaintiff's reply he states that khee was not uh proper to oppose that motion so I find council's argument here a little a little off and I would direct the court to that language and take that under advisement and I think this whole issue should be kicked to the motion at liony stage we filed in the cave case which was not briefed because we got out uh some issues under uh fro and L masto and some constitutional issues how an admission and stipulation by one party cannot be used to adversely affect the other party we plan on filing something similar in this case and I think those issues here should be deferred to the motion at limony so the court can be fully informed I understand thank you just for the because I'm a little bit lost um I so the Court's preparing an order or is Mr Parker preparing the order running it past me and then we yeah well he's going to prepare an order I think the issue I'm taking under submission would be the extent of the ruling as it relates to uh the Distributors thank you honor just want to make sure we're clear on our okay good morning thanks again sorry we stayed so long that's okay thank you your honor for